1. Service of subpoena, time
No special rules or unusual interpretations attach to the timing or manner of service of subpoenas in the Second Circuit. The requirements set out in Rule 45 of the Federal Rules of Civil Procedure and Rule 17 of the Federal Rules of Criminal Procedure control. Rules 45(b) and 17(d) both specify that the subpoena server not be a party and be at least 18 years old. Personal service is required. Rule 45(c)(3)(A)(i) of the Federal Rules of Civil Procedure states that a subpoena shall be quashed if it "fails to allow reasonable time for compliance."
Rule 45 of the Federal Rules of Civil Procedure and Rule 17 of the Federal Rules of Criminal Procedure establish the requirements for issuance of a subpoena in federal courts. The Fourth Circuit does not appear through case law to have departed from these requirements where subpoenas are directed to the news media.
The federal rules, as well as the local rules of most of the courts in the Fourth Circuit, do not specify when a subpoena must be served. The District of South Carolina requires that subpoenas for witnesses in criminal cases be delivered to the Marshal for service at least fourteen days before the Monday of the week in which the trial is set to begin, except as otherwise ordered by the Court. D.S.C. Crim. R. 17.01. In the Eastern District of Virginia, subpoenas in civil actions must be served at least fourteen days before the date of the hearing or trial, except as otherwise ordered by the Court for good cause shown. E.D. Va. R. 45(E).
No reported decision of the Fifth Circuit addresses when a subpoena must be served on a member of the news media. Generally, the court from which a subpoena was issued may quash or modify it if the court finds that the subpoena fails to allow reasonable time for compliance. Fed. R. Civ. P. 45(c)(3)(A)(i); see Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Brown v. Greyhound Lines, Inc., 1995 WL 811965 (S.D. Tex. 1995) (finding notice of less than 24 hours unreasonable). The Fifth Circuit saw no error when a district court quashed subpoenas duces tecum in a criminal case as untimely and otherwise flawed where they were served on the day jury selection was completed. United States v. Wilson, 732 F.2d 404, 412 (5th Cir. 1984).
There are no special requirements for serving subpoenas on a member of the news media in the Ninth Circuit. Generally, a party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. Fed. R. Civ. P. 30(b)(1). “If a person is a party, a simple notice of deposition is sufficient to compel attendance, while a non-party’s attendance can be compelled only by subpoena.” Jules Jordan Video, Inc. v. 144942 Canada Inc., 617 F.3d 1146, 1158 (9th Cir. 2010).
“If the subpoena commands the production of documents . . . then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.” Fed. R. Civ. P. 45(a)(4). Notice of a subpoena commanding document production from a third party need only be served (e.g. mailed by the requesting party to the opposing party) prior to service to the third parties; there is no obligation “to ensure counsel received the notice before it effected service on the third parties.” Vincent v. City of Cal. City, 2019 WL 1585202, at *4 (E.D. Cal. Apr. 12, 2019).
If a party in a civil action issues a subpoena for a reporter's documents, notes, or other materials, Rule 45 of the Alabama Rules of Civil Procedure requires the subpoenaing party to serve a notice to every other party, notifying of the intent to serve the subpoena upon the expiration of fifteen (15) days from service of the notice. ALA. R. CIV. P. 45 (a)(3)(A). A copy of the subpoena must be attached to the notice.
In a criminal action, the clerk of the court in which the criminal proceeding is pending may issue subpoenas at any time as required by any party for attendance at trial, hearings, depositions, or any other lawful purpose. ALA. R. CRIM. P. 17.1 (a).
Court rules do not contain any special rules or procedures with respect to subpoenaing members of the news media. Alaska appellate courts have not had occasion to squarely address the existence or scope of a reporter's privilege, and neither they nor the trial courts have had occasion to address this issue.
There are no special requirements regarding the timing of a subpoena directed to a member of the news media, or the manner of service. Ariz. R. Civ. P. 45, which applies to subpoenas generally, provides that "[a] party or an attorney responsible for the service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena." Ariz. R. Civ. P. 45(e)(1). Moreover, Ariz. R. Civ. P. 45(e)(2)(A)(ii) provides that a superior court must, upon a timely motion, quash or modify a subpoena if, inter alia, it "fails to allow reasonable time for compliance . . . ."
There are no special rules regarding the service of a subpoena that apply exclusively to service of subpoenas on members of the news media. Under the Arkansas Rules of Civil Procedure, there are two distinct deadlines under which a subpoena must be served, depending on the type of proceeding. For appearance at a deposition, the witness must be properly served at least five business days prior to the date of the deposition, unless the court grants leave for the subpoena to be issued within that period. Ark. R. Civ. P. 45(e). For appearance at a trial or hearing, the subpoena must be served at least two days prior to the trial or hearing, unless the court grants leave for the subpoena to be served within that time. Ark. R. Civ. P. 45(d).
California Code of Civil Procedure § 1986.1 generally requires five days’ notice before a reporter can be required to appear at a trial or hearing. It provides, in relevant part:
Because important constitutional rights of a third-party witness are adjudicated when rights under subdivision (b) of Section 2 of Article I of the California Constitution are asserted, except in exigent circumstances . . . a journalist who is subpoenaed in any civil or criminal proceeding shall be given at least five days’ notice by the party issuing the subpoena that his or her appearance will be required.
Cal. Code Civ. Proc. § 1986.1(b)(1).
Under the Rules, to be valid, a subpoena or subpoena duces tecum must show the name of the court, the title of the action and the time and place at which the person is commanded to appear. Rule 45(a); see also Crim. P. Rule 17.
The subpoena must be personally served on the person to whom it is directed and must include the fees for one day's attendance and mileage. Rule 45(c). Under Rule 45(c), a subpoena on a member of the media or any other non-party must be served at least 48 hours before the time for appearance. The Court may, however, permit a shorter notice for good cause shown. The 48-hour rule excludes weekends and holidays. Wilkerson v. State, 830 P.2d 1121 (Colo. App. 1992) (subpoena served on Friday at 11 a.m. for appearance on Monday at 9 a.m. did not comport with prescribed time limits).
The Shield Law requires that, prior to issuing a subpoena or initiating compulsory process against the news media, the party seeking information must first pursue “prior negotiations with the news media.”
Subpoenas to be served on news gatherers are governed by the same statute as governs subpoenas for any other witness. It is General Statutes §52-143, and states as follows:
(a) Subpoenas for witnesses shall be signed by the clerk of the court or a commissioner of the superior court and shall be served by an officer, indifferent person or, in any criminal case in which a defendant is represented by a public defender or special public defender, by an investigator of the division of public defender services. The subpoena shall be served not less than eighteen hours prior to the time designated for the person summoned to appear, unless the court orders otherwise.
(b) Any subpoena summoning a police officer as witness may be served upon the chief of police or any person designated by the chief of police at the appropriate police station who shall act as the agent of the police officer named in the subpoena. Service upon the agent shall be deemed to be service upon the police officer.
(c) Any subpoena summoning a correctional officer as witness may be served upon a person designated by the Commissioner of Correction at the correctional facility where the correctional officer is assigned who shall act as the agent of the correctional officer named in the subpoena. Service upon the agent shall be deemed to be service upon the correctional officer.
(d) Subpoenas for witnesses summoned by the state, including those issued by the Attorney General or an assistant Attorney General, or by any public defender or assistant public defender acting in his official capacity may contain this statement: Notice to the person summoned: Your statutory fee as witness will be paid by the clerk of the court where you are summoned to appear, if you give the clerk this subpoena on the day you appear. If you do not appear in court on the day and at the time stated, or on the day and at the time to which your appearance may have been postponed or continued by order of an officer of the court, the court may order that you be arrested."
(e) If any person summoned by the state, or by the Attorney General or an assistant Attorney General, or by any public defender or assistant public defender acting in his official capacity, by a subpoena containing the statement as provided in subsection (d), or if any other person upon whom a subpoena is served to appear and testify in a cause pending before any court and to whom one day's attendance and fees for traveling to court have been tendered, fails to appear and testify, without reasonable excuse, he shall be fined not more than twenty-five dollars and pay all damages to the party aggrieved; and the court or judge, on proof of the service of a subpoena containing the statement as provided in subsection (d), or on proof of the service of a subpoena and the tender of such fees, may issue a capias directed to some proper officer to arrest the witness and bring him before the court to testify.
The statute governing subpoenas for depositions is General Statutes § 52-148e, and states as follows:
(a) Each judge or clerk of any court, justice of the peace, notary public or commissioner of the superior court, in this state, may issue a subpoena, upon request, for the appearance of any witness before him to give his deposition in a civil action or probate proceeding, if the party seeking to take such person's deposition has complied with the provisions of sections 52-148a and 52-148b and may take his deposition, each adverse party or his agent being present or notified.
(b) The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which are material to the cause of action or the defense of the party at whose request the subpoena was issued and within the possession or control of the person to be examined. However, no subpoena may compel the production of matters which are privileged or otherwise protected by law from discovery.
(c) Any person to whom a subpoena commanding production of books, papers, documents or tangible things has been directed may, within fifteen days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than fifteen days after service, serve upon the issuing authority designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party at whose request the subpoena was issued shall not be entitled to inspect and copy the disputed materials except pursuant to an order of the court in which the cause is pending. The party who requested the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.
(d) The court in which the cause is pending may, upon motion made promptly and in any event at or before the time for compliance specified in a subpoena authorized by subsection (b) of this section, (1) quash or modify the subpoena if it is unreasonable and oppressive or if it seeks the production of materials not subject to production under the provisions of subsection (b) of this section, or (2) condition denial of the motion upon the advancement by the party who requested the subpoena of the reasonable cost of producing the materials which he is seeking.
(e) If any person to whom a lawful subpoena is issued under any provision of this section fails without just excuse to comply with any of its terms, the court before which the cause is pending, or any judge thereof, may issue a capias and cause him to be brought before such court or judge, as the case may be, and, if the person subpoenaed refuses to comply with said subpoena, such court or judge may commit him to jail until he signifies his willingness to comply with it.
(f) Deposition of witnesses living in this state may be taken in like manner to be used as evidence in a civil action or probate proceeding pending in any court of the United States or of any other state of the United states or of any foreign country, on application of any party to such civil action or probate proceeding.
Subpoenas must be served upon the witness personally, Abode service does not suffice.
Subpoenas seeking records or testimony from the press, like any other nonparty subpoenas, are governed by Rule 45 of the Federal Rules of Civil Procedure if issued in a civil proceeding. If issued in a criminal proceeding, they are governed by Rule 17 of the Federal Rules of Criminal Procedure.
A civil subpoena must be served by a person who is not a party to the action and is 18 years or older, and if it commands attendance it must be accompanied by the statutory fee for one day’s attendance and mileage allowance. Fed. R. Civ. P. 45(b)(1). Alternate means of service, such as registered mail, are not permitted. FTC v. Compagnie De Saint-Gobain-Pont-A-Mousson, 636 F.2d 1300, 1312 (D.C. Cir. 1980). The subpoena must: provide the name of the court from which it was issued, the title of the action, and its civil action number; command the recipient at a specified time and place to attend and testify, produce designated materials, or permit the inspection of premises; and set out the text of Rule 45(d)-(e). Fed R. Civ. P. 45(a)(1)(A). The subpoena may be served anywhere in United States. Fed. R. Civ. P. 45(b)(2). A civil subpoena may command attendance at a trial, hearing, or deposition within 100 miles of where the recipient resides, is employed, or regularly transacts business in person; or that is within the state where the recipient resides, is employed, or regularly transacts business in person if the recipient is a party or a party’s officer, or is commanded to attend a trial and would not incur substantial expense. Fed. R. Civ. P. 45(c)(1). A subpoena may require production of records at a place within 100 miles of where the recipient resides, is employed, or regularly transacts business in person, or it may command inspection of premises at those premises. Fed. R. Civ. P. 45(c)(2). Service outside of the United States is governed by 28 U.S.C. § 1783. Fed. R. Civ. P. 45(b)(3).
A criminal subpoena may be served anywhere in the United States by a marshal, a deputy marshal, or any other person who is not a party and is 18 years or older. Fed. R. Crim. P. 17(d). Service is perfected by delivery of a copy of the subpoena to the recipient and, unless the subpoena was requested by the federal government, by tendering to that person the fee for one day’s attendance and the mileage allowance. Id. The subpoena must: state the court’s name and the title of the proceeding, include the seal of the court, and command the recipient to attend and testify at the time and place the subpoena specifies. Fed. R. Crim. P. 17(a). A criminal deposition subpoena must be issued upon order of the court in the district where the deposition will be taken, and “[a]fter considering the convenience of the witness and the parties, the court may order—and the subpoena may require—the witness to appear anywhere the court designates.” Fed. R. Crim. P. 17(f)(2).
Certain federal regulations specifically govern the issuance of subpoenas to the press. For example, Department of Justice regulations provide that, certain exceptions aside, subpoenas may be used “to obtain information from, or records of, members of the news media” only (1) “when the information sought is essential to a successful investigation, prosecution, or litigation”; (2) “after all reasonable alternative attempts have been made to obtain the information from alternative sources”; and (3) “after negotiations with the affected member of the news media have been pursued and appropriate notice to the affected member of the news media has been provided, unless the Attorney General determines that, for compelling reasons, such negotiations or notice would pose a clear and substantial threat to the integrity of the investigation, risk grave harm to national security, or present an imminent risk of death or serious bodily harm.” 28 C.F.R. § 50.10(a)(3)-(4).
In determining whether to authorize the issuance of a subpoena to a member of the press in criminal matters, the Attorney General is obliged to consider whether there are “reasonable grounds to believe, based on public information, or information from non-media sources, that a crime has occurred, and that the information sought is essential to a successful investigation or prosecution.” Id. § 50.10(c)(4)(ii)(A). Such a subpoena “should not be used to obtain peripheral, nonessential, or speculative information.” Id.
In determining whether to authorize the issuance of a subpoena to a member of the press in civil matters, the Attorney General is obliged to consider whether there are “reasonable grounds to believe, based on public information or information from non-media sources, that the information sought is essential to the successful completion of the investigation or litigation in a case of substantial importance.” Id. § 50.10(c)(4)(ii)(B). Such a subpoena “should not be used to obtain peripheral, nonessential, cumulative, or speculative information.” Id.
A proposed subpoena to the press “generally should be limited to the verification of published information and to such surrounding circumstances as relate to the accuracy of the published information.” Id. § 50.10(c)(4)(v). A proposed subpoena should (1) “be narrowly drawn”; (2) “be directed at material and relevant information regarding a limited subject matter”; (3) “cover a reasonably limited period of time”; (4) “avoid requiring production of a large volume of material”; and (5) “give reasonable and timely notice of the demand.” Id. § 50.10(c)(4)(viii).
Although Delaware Code does not specifically address the time by which a subpoena must be served, a subpoena may be quashed for failure to provide "reasonable time for compliance." Super. Ct. Civ. R. 45 (c)(3)(A)(i). The Rules of Civil Procedure acknowledge that subpoenas will sometimes be issued with less than 14 days' notice. Super. Ct. Civ. R. 45 (c)(2)(B).
District of Columbia
No special subpoena rules exist regarding the news media. Rather, in the D.C. court system, civil subpoenas to compel disclosure from a non-party journalist or news media entity, like any other nonparty subpoenas, are governed by SCR-Civ. 45. Subpoenas in criminal proceedings are governed by SCR-Crim. 17.
Under SCR-Civ. 45, a subpoena must be served by a person who is not a party to the action and is 18 years or older. Subpoenas may be served upon a person located anywhere within the District or within 25 miles of the District. The subpoena must: provide the name of the court, the title of the civil action, its civil action number, its calendar number, the judge or magistrate judge to whom the matter is assigned, and the time and place for the deposition or production of documents; command the subpoenaed person to attend the deposition and provide testimony, produce and permit inspection and copying of documents or other tangible items in the person’s possession, custody, or control, or allow the inspection of a premises; and include the text of SCR-Civ. 45(c) and (d).
Under SCR-Crim. 17, a subpoena may be served by the U.S. Marshal, a Deputy Marshal, or by any other person who is not a party and who is 18 years or older. The subpoena must state the name of the court and the title of the proceeding, and it must command each person to whom it is directed to attend and give testimony at the time and place specified therein. A subpoena requiring attendance of a witness at a trial or hearing issued under SCR-Crim. 17 may be served at any place within the District or at any place outside the District that is within 25 miles of the place of the hearing or trial specified in the subpoena. However, a subpoena directed to a witness in a case in which a felony is charged may be served at any place within the United States upon order of a judge of the court.
Florida has no special rules that govern the timing of service of subpoenas to reporters. Thus, the general provisions contained in the Florida Rules of Criminal Procedure and Rules of Civil Procedure apply. Those rules do not fix the time for service of a subpoena. Florida law generally requires that legal papers must be served upon individuals personally or at their residence. See § 48.193(3), Fla. Stat.(2016); Stoeffler v. Castagiola, 629 So. 2d 196 (Fla. 2d DCA 1993); Fla. Att'y Gen. Op. 72-128 (April 6, 1972).
There are no special requirements for serving a subpoena on the news media. Generally, under Georgia law, personal service of a subpoena commanding the attendance of a witness at a hearing or trial may be perfected by any sheriff, deputy or other person at least 18 years of age. Service may also be made by certified or registered mail or overnight delivery. O.C.G.A. § 24-13-24. A court may consider whether under the circumstances of each case a subpoena was served within a reasonable time. O.C.G.A. § 24-13-26. In no event may the time of service be less than 24 hours prior to the time that appearance is required. Id.
HRCP 45 and HRPP 17 do not specify when a subpoena must be served; however, summonses in a civil case shall not be personally delivered between 10:00 p.m. and 6:00 a.m. on premises not open to the general public unless a judge permits, in writing on the summons, personal delivery during those hours.
There are no restrictions upon the time for service of the subpoena for a witness to appear in court, but Idaho Rule of Civil Procedure 45(c) provides that a subpoena compelling a person to produce or allow inspection of documents must be given thirty (30) days to comply. Idaho Rule of Civil Procedure 45(d) further provides that a witness subject to a subpoena may bring a motion to quash if the subpoena “fails to allow time for compliance.”
A subpoena to depose a witness in a civil proceeding may be served by certified or registered mail, so long as the return receipt shows that the deponent or his agent received the subpoena at least seven days before the date on which his appearance is sought. The party seeking to depose the witness must submit an affidavit showing that the mailing was prepaid and was addressed to the deponent, restricted delivery, return receipt requested, showing to whom, date and address of delivery, with a check or money order for the fee and mileage enclosed. See Ill. Sup. Ct. R. 204. Illinois Supreme Court Rule 237 provides the time frame for service of subpoenas on civil trial witnesses in Illinois. The rule states that subpoena by mail must be delivered to the witness by certified or registered mail at least seven days before the date on which appearance is required. Ill. Sup. Ct. R. 237. Subpoenas for witnesses in criminal proceedings are governed by the local rules of each Illinois Judicial District, and vary from district to district.
There are no special rules for service of subpoenas to the news media. In general, “[s]ervice of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person.” Ind. R. Trial P. 45(C). For general rules on subpoenas, see Ind. R. Trial P. 34 (“Production of documents, electronically stored information, and things and entry upon land for inspection and other purposes”); Ind. R. Trial P. 45 (“Subpoena”); Ind. R. Crim. P. 2 (“Subpoena duces tecum”); Ind. Code § 35-37-5-2 (“Subpoena; issuance; service; proof of service; fees; contempt of court”); Ind. Code § 35-37-5-5 (subpoenas to witnesses out of state); Ind. Code § 35-34-2-5 (grand jury subpoenas). Generally, criminal subpoenas require compliance with the Indiana Rules of Trial Procedure. See Cooper v. State, 714 N.E.2d 689, 690 (Ind. Ct. App. 1999) (holding that the trial rules apply to criminal proceedings so long as they do not conflict with special criminal rules).
Iowa imposes no special procedures or deadlines for service of a subpoena on journalists. There are no state regulations that parallel the U.S. Department of Justice guidelines for subpoenaing journalists. Rule 1.1701 of the Iowa Rules of Civil Procedure does not state a minimum time between service of the subpoena and the date of the testimony. Instead, Rule 1.1701(4) states that a reasonable time must be given or the subpoena will be quashed.
There is no specific limitation under either state or federal civil procedural rules requiring a litigant causing a subpoena to be issued to obtain service within a specified period in advance of the hearing or deposition; however, the rules provide that a court may award sanctions in connection with the issuance of a subpoena if the litigant responsible “fails to allow reasonable time for compliance.” K.S.A. 2006 Supp. 60-245(c)(3)(A)(i) and Rule 45(c)(3)(A)(i), Fed.R.Civ.P.
A subpoena issued to any news media organization, reporter, custodian of records, photographer, or other representative, shall be served at least ten days prior to the return date specified in the subpoena unless otherwise ordered by the court, upon a showing of good cause. Any person served with the subpoena is able to seek an order continuing the return date or quashing the subpoena because of the need for additional time in order to respond. La. R.S. 45:1456.
There are no special rules regarding service of subpoenas on the press. The subpoena must be served in accordance with either Rule 45 of the Maine Rules of Civil Procedure or Rule 17 (witnesses) or 17A (documents) of the Maine Rules of Criminal Procedure.
The federal court in Maine has specified that a party serving a subpoena may not survive a motion to quash unless they demonstrate “evidence of the elements of its claim other than that (or those) to which the discovery sought may apply before any such discovery may be sought from a reporter.” Levesque v. Doocy, 247 F.R.D. 55, 57–58 (D. Me. 2007).
- Circuit Court -- Discovery
Deposition - Md. R. Civ. Proc. 2-412(a) -- "A party desiring to take a deposition shall serve a notice of deposition upon oral examination at least ten days before the date of the deposition or a notice of deposition upon written questions in accordance with Rule 2-417." Same time re: subpoena for non-party deponent. See Md. R. Civ. Proc. 2-510(a)(1)(B).
Deposition plus production of documents or other tangible things -- Md. R. Civ. Proc. 2-412(c) -- "If a subpoena requiring the production of documents or other tangible things at the taking of the deposition is to be served on a party or nonparty deponent, the designation of the materials to be produced as set forth in the subpoena shall be attached to or included in the notice and the subpoena shall be served at least 30 days before the date of the deposition." Same time for requests for documents from parties. Md. R. Civ. Proc. 2-422(c).
Deposition -- Written questions -- Md. R. Civ. Proc. 2-417(a) -- "A party desiring to take a deposition upon written questions shall serve the questions together with the notice of deposition. Within 30 days after service of the notice and written questions, a party may serve cross questions. Within 15 days after service of cross questions, a party may serve redirect questions. Within 15 days after service of redirect questions, a party may serve recross questions."
Deposition -- By telephone -- Md. R. Civ. Proc. 2-418-- "The parties may stipulate in writing, or the court on motion may order, that a deposition be taken by telephone. …"
Discovery of documents -- Md. R. Civ. Proc. 2-422 -- "(a) Scope. Any party may serve one or more requests to any other party (1) as to items that are in the possession, custody, or control of the party upon whom the request is served, to produce and permit the party making the request, or someone acting on the party's behalf, to inspect, copy, test or sample designated documents or electronically stored information. . . ;" "(c) Response. The party to whom a request is directed shall serve a written response within 30 days after service of the request or within 15 days after the date on which that party's initial pleading or motion is required, whichever is later. The response shall state, with respect to each item or category, that (1) inspection and related activities will be permitted as requested, (2) the request is refused, or (3) the request for production in a particular form is refused. The grounds for each refusal shall be fully stated. …"
- Circuit Court -- Trial
Subpoena for Nonparty -- Md. R. Civ. Proc. 2-510(a)(1) -- "A subpoena is required (A) to compel the person to whom it is directed to attend, give testimony, and produce designated documents or other tangible things at a court proceeding, including proceedings before a master, auditor, or examiner; and (B) to compel a nonparty to attend, give testimony, and produce and permit inspection, copying, testing, or sampling of designated documents, electronically stored information or other tangible things at a deposition."
Subpoenas -- Md. R. Civ. Proc. 2-510(d) -- "Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing."
When court may require production of evidence -- Md. R. Civ. Proc. 2-514 -- "When it appears to the court at a hearing or trial that the attendance or testimony of any person or the production of any document or tangible thing not produced by any party is necessary for the purpose of justice, the court (a) may order any party to produce the document or tangible thing for inspection by the court or jury, or (b) may issue a subpoena for the production of the person, document, or tangible thing; and in either event the court may continue the hearing or trial to allow compliance with the order or subpoena, upon such conditions as to time, notice, cost, and security as the court deems proper."
- District Court
Depositions are not permitted in district court, unless a written stipulation is filed in the action. See Md. R. Civ. Proc. 3-401(a).
Discovery -- Md. R. Civ. Proc. 3-401 -- "Except as otherwise provided in this Title, a party may obtain discovery by written interrogatories and, if a written stipulation is filed in the action, by deposition upon oral examination or written questions. The taking and use of a deposition permitted under this Rule shall be in accordance with Chapter 400 of Title 2.
Subpoena for Nonparty -- See Md. R. Civ. Proc. 3-510(a) (substantively identical to Md. R. Civ. Proc. 2-510(a) except that testing and sampling of documents is not discussed, nor is electronically stored information listed as a category of information the recipient of a subpoena must produce).
Subpoenas -- Md. R. Civ. Proc. 3-510(d) -- "Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing."
When court may require production of evidence -- Md. R. Civ. Proc. 3-514 - "When it appears to the court at a hearing or trial that the attendance or testimony of any person or the production of any document or tangible thing not produced by any party is necessary for the purpose of justice, the court (a) may order any party to produce the document or tangible thing for inspection by the court or jury, or (b) may issue a subpoena for the production of the person, document, or tangible thing; and in either event the court may continue the hearing or trial to allow compliance with the order or subpoena, upon such conditions as to time, notice, cost, and security as the court deems proper."
Under Michigan Court Rule 2.506(C)(1), service of all subpoenas must be made at least two days before the time for appearance unless the court specifies otherwise. Service must be made personally, except parties to the case can be served by service on their attorney.
Service may be made by mail, although the recipient is not required to attend pursuant to a subpoena served by mail. See MCR 2.506(G)(2) (stating that if a subpoena by mail is not returned, the subpoena must be served by personal service). Therefore, in order to compel attendance, personal service of the subpoena must be obtained. Id. However, many lawyers mail or fax subpoenas with or without service fees. Such subpoenas are not sufficient to compel attendance. MCR 2.506(G)(3) (allowing service by email or facsimile in some settings but stating that, without confirmation, a subpoena must be served by personal service).
Minnesota imposes no special procedures or deadlines for service of a subpoena on journalists. Rule 45 of the Minnesota Rules of Civil Procedure does not set a minimum period between service and the time of testimony. Case law establishes that notice must be "reasonable" under the circumstances, but this is a flexible standard. See Baskerville v. Baskerville, 75 N.W.2d 762, 769 (Minn. 1956); Phillippe v. Comm'r of Pub. Safety, 374 N.W.2d 293, 297 (Minn. Ct. App. 1985).
Missouri law sets out the requirements for service of subpoenas in Section 536.077 of the Missouri Statutes. That statute does not set out a minimum amount of time before the deposition, and the only discussion of an “untimely” notice was in the context of a subpoena issued in the course of a hearing. The statute does set out certain other requirements that must be met at certain times and in certain circumstances, such as the payment of witness fees, but which are not related to media issues.
There are no special requirements for service on a member of the news media. In general, subpoenas are served by showing the original and presenting a copy, along with the statutory witness fee (currently $10) and a fee for mileage if the person subpoenaed lives out of the town and requests mileage. Subpoenas must be served sufficiently ahead of time to give the person subpoenaed a reasonable amount of time to comply or object.
- To compel testimony at trial -- Not less than six (6) days before the trial day of the cause upon which witness' attendance required. See Neb. Rev. Stat. § 25-1226 (Reissue 2016).
- To depose non-party -- See Nebraska Discovery Rules for all Civil Cases, §§ 6-326 and 6-330. Reasonable notice to adverse party required. Reasonable notice to the deponent required.
- c. To compel production by non-party or inspection without a deposition -- See Nebraska Discovery Rules for all Civil Cases, § 6-334(A). Not less than ten (10) days notice to adverse parties prior to issuance of subpoena. If adverse party objects then a hearing can be held to resolve the disputes. Person served with the subpoena has ten (10) days to object.
There appear to be no special rules concerning service of subpoenas to members of the news media.
Issuance of subpoenas in criminal cases is governed by Chapter 174 of the Nevada Revised Statutes (“NRS”). According to NRS 174.305, a subpoena issued in a criminal case must be issued by the clerk under the seal of the court.
Subpoenas issued in criminal cases “may be served by a peace officer or by any other person who is not a party and who is not less than 18 years of age.” NRS 174.345(1). Generally, “service of a subpoena must be made by delivering a copy” of the subpoena to the person named. Id. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the State of Nevada. NRS 174.365.
NRS 174.315 governs subpoenas issued in connection with grand juries.
Subpoenas issued in a civil case are governed by Nevada Rule of Civil Procedure 45. A subpoena must issue from the court where the action is pending. The clerk must issue the subpoena, signed but otherwise blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court. See NRCP 45(a)(2)–(3).
If a civil subpoena requires “the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, then at least 7 days before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party to permit a party to object to and seek issuance of a protective order against the subpoena during that time.” NRCP 45(a)(4).
If a party to the litigation objects to the subpoena served on a third party, “the objecting party must file and serve written objections to the subpoena and a motion for a protective order under Rule 26(c) within 7 days after being served with notice and a copy of the subpoena under Rule 45(a)(4)(A).” The party must “demonstrate a basis for asserting that the command will require disclosure of privileged, confidential, or other protected matter . . . .” Id.
If the subpoenaed person objects, she or he “must serve [the objection] before the earlier of the time specified for compliance or 14 days after the subpoena is served.” NRCP 45(c)(2)(B).
Any person who is at least 18 years old and not a party may serve a subpoena. NRCP 45(b). If the subpoena requires testimony, the serving party must tender the fee for one day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the state or any of its officers or agencies. NRS 50.225.
A subpoena may be served at any place within the state. NRCP 45(c)(3)(A)(ii). A subpoena may also be served in another state or territory of the United States as provided by the law of that state or territory. A subpoena may also be served in a foreign country as provided by the law of that country. Finally, a subpoena issued by a court in another state or territory of the United States that is directed to a person in Nevada must be presented to the clerk of the district court in the county in which discovery is sought to be conducted.
Pursuant to the New Jersey Rules of Court a subpoena for testimony must be served on the newsperson, within the state of New Jersey, at least 5 days prior to trial. R.1:9-1. A subpoena for testimony during discovery must be served at least 10 days prior to the date for testimony.
A subpoena is subject to being quashed or modified if it “fails to allow reasonable time for compliance.” Rule 1-045(C)(3)(a)(i) NMRA (civil cases); Rule 5-511(C)(3)(a)(i) NMRA (criminal cases); see, e.g., Attorney Gen. v. Montoya, 1998-NMCA-149, ¶¶ 7-9, 126 N.M. 273, 968 P.2d 784 (holding that district court did not err in refusing to enforce subpoena issued to attorney one day before trial), cert. denied, 126 N.M. 532, 972 P.2d 351 (1998). And a subpoena that purports to require compliance less than 14 days after the date of service in a civil case is presumptively invalid; indeed, the recipient of a civil subpoena is not permitted to comply with it in fewer than 14 days unless a court orders otherwise. See Rule 1-045(C)(2)(a)(ii) NMRA.
With only a very few exceptions, there is no stated minimum or maximum time for the return of a subpoena. The return date is left to the individual determination of the one issuing it. See Application of Mullen, 177 Misc. 734, 31 N.Y.S.2d 710 (Queens Cty. Ct. 1941) ("[W]hoever issues it has the authority to determine in advance as to when and where the witness shall appear."). (For exceptions to this general rule, see e.g., CPLR §§ 2306, 2307). If there are exigent circumstances, a subpoena may even be made returnable "forthwith." However, courts will take into account the abbreviated return date in determining whether the subpoena has been disobeyed. See Siegel’s N.Y. Prac. § 382 (6th ed.).
Under CPLR § 2303, a subpoena must be served "in the same manner as a summons". CPRL § 308, which governs service of a summons, provides for various forms of service.
In North Carolina, the issuance and form of subpoenas for both civil and criminal trials are controlled by Rule 45 of the North Carolina Rules of Civil Procedure. See N.C. Gen. Stat. §§ 15A-801 (subpoena for witness in criminal cases) & 15A-802 (subpoena for production of documentary evidence in criminal cases). A subpoena can require a witness to testify (subpoena ad testificandum) or require the witness to produce documentary evidence (subpoena duces tecum). The procedure for service differs for each type.
A subpoena for a witness may be served in three ways: (1) any person 18 or older who is not a party may serve the subpoena in person by the actual delivery of a copy; (2) any person 18 or older who is not a party may serve the subpoena by certified mail or by registered mail, return receipt requested; and (3) the subpoena may be served by direct telephone conversation with the party. See N.C. R. Civ. P. 45(b). In civil cases, telephone service can only be made by the sheriff, his designee who is 18 or older, or by the coroner, while in criminal cases, any employee of a local law enforcement agency can effect telephone service. Id.; N.C. Gen. Stat. § 8-59. In a criminal case, where a person has been served by telephone, neither an order to show cause nor an order for arrest can be issued until that person has also been personally served with the written subpoena. N.C. Gen. Stat. § 8-59.
A subpoena for the production of documentary evidence may be served either (1) by the actual delivery of a copy to the person, or (2) by certified mail or by registered mail, return receipt requested. N.C. R. Civ. P. 45(b). Service may be effected by any person 18 or older who is not a party. Id.
The district attorney may subpoena grand jury witnesses, and the subpoena must be served by the investigative grand jury officer, who is appointed by the court. N.C. Gen. Stat. § 15A-623(h). The witness herself is the only person who may disclose the fact that she has been subpoenaed. Otherwise, the method of service is the same as that of any other subpoena issued in a criminal matter.
There are no special rules for serving a subpoena on a member of the news media. Rule 45 of the North Dakota Rules of Civil Procedure requires that the subpoena be personally served, along with payment for one day's attendance, along with mileage and travel expense, as set by law.
Okla. Stat. tit. 12, § 3230(C)(1) requires that a subpoena be served sufficiently in advance of the deposition or hearing to allow a witness the time needed to travel to the place where the testimony is to be given, plus three days of preparation. Okla. Stat. tit. 12, § 2004.1 provides that if a subpoena commands production of documents but does not require the attendance of a witness, the subpoena shall specify a date of production at least seven days after service of the subpoena. By local court rules, the federal district courts in Oklahoma have defined “reasonable notice” for a deposition to be seven days (Eastern and Northern Districts) or 14 days (Western District)
Service of a subpoena must be made within reasonable time to allow for preparation and travel. ORCP 55D(1). If a subpoena commands production of books, papers or tangible things and it is not accompanied by a demand to appear at trial, or hearing or at a deposition, a copy of the subpoena must be served on each party to the litigation at least seven days before it is served on the person required to produce the documents. Additionally, the subpoena shall not require production less than 14 days from date of service absent court order. ORCP 55D(1)
There are no requirements under either the Shield Law or the First Amendment privilege as to when a subpoena must be served on a member of the news media. All witnesses are required to be served a reasonable time before a subpoena’s return date. Pa. R.C.P. No. 234.1; see also Commonwealth v. Walsh, 36 A.3d 613, 620 (Pa. Super. 2012).
The service of a subpoena in a civil matter is governed by Rhode Island Superior Court Rules of Civil Procedure, Rule 45. It may be served in a manner that allows a party "reasonable time" to comply. The Rule also provides that it:
may be served by the sheriff, by the sheriff's deputy, by a constable, or by any other person who is not a party and is not less than 18 years of age." Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law. A subpoena may be served at any place within the state.
R.I. Superior Court Rules of Civil Procedure, Rule 45.
Likewise, in criminal cases, service of subpoena is governed by Rule 17 of the Rhode Island Superior Court or District Court Rules of Criminal Procedure, which has identical language. R.I. Rules of Criminal Procedure, Rule 17. The Rule provides:
A subpoena may be served by the sheriff, by the sheriff's deputy, by a constable, or by any other who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named and by tendering to him the fee for one day's attendance and the mileage allowed by law. When the subpoena is issued in behalf of the State or an officer or agency thereof, fees and mileage need not be tendered.
R.I. Rules of Criminal Procedure, Rule 17.
A subpoena seeking to compel attendance at a deposition or trial may be served at any time prior to the deposition or trial, but the person served has the right to move to quash the subpoena if insufficient time for compliance has been provided. Rule 45(c)(3)(A)(i), SCRCP. A subpoena seeking to compel the production of material for trial must be served at least 10 days prior to trial. Other subpoenas for production do not have a minimum time for response, but the person compelled may move prior to the time for responding for a protective order.
No special rules for service on media. Subpoenas are "served in the same manner as a summons is served." Subpoenas must be served "sufficiently in advance of the date upon which the appearance of the witness is required to enable such witness to reach such place." SDCL 15-6-45(c).
The Texas Rules of Civil Procedure (Rule 176) do not state how much advance notice must be given for issuing a subpoena for a hearing or trial. The subpoenaing party must be diligent in procuring the testimony. Further, both the civil and the criminal reporter’s privilege statutes expressly state that an order to compel privileged information may only be issued after timely notice has been given to the journalist and a hearing has been held. See Tex. Civ. Prac. & Rem. Code §22.025 and Tex. Code Crim. Proc. art. 38.11, §6. Finally, one of the factors the court is required to consider prior to ruling on a motion is whether reasonable and timely notice was given of the demand for information. See Tex. Civ. Prac. & Rem. Code §22.024(3) and Tex. Code Crim. Proc. art. 38.11, §5(b)(2).
A subpoena in a criminal case must be personally served and “may compel the attendance of a witness from anywhere in the state.” Utah R. Crim. P. 14(a)(3) and 14(a)(5). In a civil case, a subpoena may be personally served or, in some cases, served by mail or commercial courier service and may command the attendance of a person either residing in the state or served within the state. Utah R. Civ. P. 4(d), 45(b)(1), and 45(c). A subpoena in a civil case requiring appearance at trial or a hearing may be served anywhere in the state. Utah R. Civ. P. 45(c). A process server other than an attorney, sheriff, constable or deputy U.S. marshal must provide proof of service by affidavit. Utah R. Civ. P. 4(e). Unless the subpoena is issued on behalf of the state or federal government, the issuing party or attorney must provide the person receiving the subpoena fees for one day's attendance and mileage. Utah R. Civ. P. 45(b)(2).
A subpoena may be served by any person who is not a party to the lawsuit and who is not less than eighteen (18) years of age. Service of the subpoena is made by delivering a copy to the person named therein, along with the fees for one day’s attendance plus mileage allowed by law. See V.R.C.P. 45(b); V.R.Cr.P. 17(d). Under Vermont law, that amount is $30.00 per day and $.545 per mile for civil cases and $10.00 per day plus $.08 per mile for criminal proceedings. See 32 V.S.A. §§ 1551, 1552. There is no minimum time limit by which a subpoena must be served, but the trial court may quash or modify the subpoena if it fails to allow “reasonable time” for compliance. See V.R.C.P. 45(c)(3)(A)(i).
There are no specific requirements for when a subpoena must be served on a member of the news media. Under CR 45(a)(4), an attorney of record in a case is authorized to issue subpoenas demanding production of documents or deposition testimony from third parties. The usual notice period for depositions in civil actions is "not less than 5 days (exclusive of the day of service, Saturdays, Sundays and court holidays) to every other party to the action and to the deponent, if not a party or managing agent of a party. . . . Failure to give 5 days' notice to a deponent who is not a party or a managing agent of a party may be grounds for the imposition of sanctions in favor of the deponent, but shall not constitute grounds for quashing the subpoena." CR 30(b)(1). Similar procedures are applicable in criminal cases. CrR 4.6(c), 4.8.
Subpoenas for civil and criminal trials are governed by statute. RCW 5.56.010; RCW 10.52.040.
In West Virginia, service of subpoenas in civil cases is governed by Rule 45 of the West Virginia Rules of Civil Procedure, and in criminal cases, service of subpoenas is governed by Rule 17 of the Rules of Criminal Procedure. There are no special requirements that must be met to serve a subpoena on a member of the press. Rule 45 states that a subpoena can be quashed or modified if it "fails to allow reasonable time for compliance[.]" Although the rules do not specify a number of days in advance of the appearance requested in the subpoena that the subpoena must be served, the amount of time is somewhat discretionary with the court. It should be noted that the West Virginia Supreme Court has quashed a subpoena served only four (4) days or so prior to trial on the basis that the service was not "diligent." Blankenship v. Mingo Cnty. Econ. Opportunity Comm'n, Inc., 187 W.Va. 157, 416 S.E.2d 471, 476 (1992). Rule 45 allows a party fourteen (14) days to object to a subpoena duces tecum, but allows less time to object if the subpoena specifies less time to respond.
Unless the parties agree otherwise, notice of a third-party subpoena issued for discovery purposes must be provided to all parties at least 10 days before the scheduled deposition in order to preserve the right to object. Wis. Stat. § 805.07(2)(b). There is no statutory mandate on how far in advance of a proceeding a subpoena must be served.
Wyoming law requires that the subpoena be issued in time to allow the person reasonable time to comply. The courts have found that service less than five days before the person is required to appear is unreasonable. What is reasonable, of course, will depend on the circumstances. Wyoming has no special provisions regarding service of subpoenas on the media.