V. Procedures for issuing and contesting subpoenas

Recognizing that the Eleventh Circuit has not definitively ruled on whether a Rule 45 subpoena must be personally served and, consequently, the district courts have reached different conclusions, the Middle District of Georgia held that personal service of a subpoena in a civil case did not require personal service. Personal service is not required by Rule 45 as long as the means of service are reasonably calculated to ensure receipt and actual notice by the witness.  Although the subpoena was issued to a trade name used by a duopoly, and not either of the existing legal entities, the parent company of the duopoly waived an objection on that basis by responding to the subpoena.  Castleberry v. Camden County, 331 F.R.D. 559 (M.D. Ga. 2019).

Each of the federal district courts within the Fourth Circuit has its own rules and procedures. Counsel are encouraged to review a copy of the relevant local rules, and contact the court with specific questions that are not addressed by the rules.

California courts are bound by the statewide Codes of Civil Procedure and Court Rules. In addition, individual jurisdictions may have “local rules” that contain both procedural and substantive requirements. This section focuses on the statewide rules of procedure. The appropriate local rules for the judicial district also should be reviewed before responding to a subpoena.

The following sections are concerned with the legal procedures required to serve a subpoena on a member of the news media and to quash the subpoena or defeat a motion to compel.

The following sections are concerned with the legal procedures required to serve a subpoena on a member of the news media and to defeat or quash the service.

Absent the provisions within the Shield Law itself, the Illinois Code of Civil Procedure governs the issuance of subpoenas in civil cases. See, e.g., 735 ILCS 5/2-1101, 5/10-109.  Subpoenas issued in criminal cases are governed by the Illinois Code of Criminal Procedure, see 725 ILCS 5/115-17 (issuance of subpoenas “on the part of the people or of the accused”); 5/112-4(b) (grand jury’s subpoena power); and criminal rules of practice for each judicial district. See, e.g., Cook Cty., Ill. Cir. Ct. Rule 15.3 (rule for issuing subpoenas in criminal cases in Cook County); Rules of Practice, Ill. 19th Judicial Cir., Rule 9-1.11 (pretrial subpoenas in criminal cases). In addition, Illinois Supreme Court Rules govern compelling appearances of witnesses at trial and the subpoena power in civil cases. See Ill. Sup. Ct. R. 204 (deposition), 237(trial).

Miss. R. Civ. P. 45 governs the issuing of subpoenas in Mississippi. There is no Mississippi statutory or case law distinguishing subpoenas issued on members of the media. Miss. R. Civ. P. reads:

(a) Form; Issuance.

(1) Every subpoena shall be issued by the clerk under the seal of the court, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony, or to produce and permit inspection and copying of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified. The clerk shall issue a subpoena signed and sealed, but otherwise in blank, to a party requesting it, who shall fill it in before service. A command to produce or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(2) Subpoenas for attendance at a trial or hearing, for attendance at a deposition, and for production or inspection shall issue from the court in which the action is pending.

(3) In the case of discovery to be taken in foreign litigation, the subpoena shall be issued by a clerk of a court for the county in which the discovery is to be taken. The foreign subpoena shall be submitted to the clerk of court in the county in which discovery is sought to be conducted in this state. When a party submits a foreign subpoena to a clerk of court in this state, the clerk, in accordance with that court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed. The subpoena under subsection (3) must incorporate the terms used in the foreign subpoena and it must contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and any party not represented by counsel. A subpoena issued by a clerk of court under subsection (3) must otherwise be issued and served in compliance with the rules of this state. An application to the court for a protective order or to enforce, quash or modify a subpoena issued by a clerk of court under subsection (3) must comply with the rules of this state and be submitted to the issuing court in the county in which discovery is to be conducted.

(b) Place of Examination.

A resident of the State of Mississippi may be required to attend a deposition, production or inspection only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A non-resident of this state subpoenaed within this state may be required to attend only in the county wherein he is served, or at such other convenient place as is fixed by an order of the court.

(c) Service.

(1) A subpoena may be served by a sheriff, or by his deputy, or by any other person who is not a party and is not less than 18 years of age, and his return endorsed thereon shall be prima facie proof of service, or the person served may acknowledge service in writing on the subpoena. Service of the subpoena shall be executed upon the witness personally. Except when excused by the court upon a showing of indigence, the party causing the subpoena to issue shall tender to a non-party witness at the time of service the fee for one day's attendance plus mileage allowed by law. When the subpoena is issued on behalf of the State of Mississippi or an officer or agency thereof, fees and mileage need not be tendered in advance.

(2) Proof of service shall be made by filing with the clerk of the court from which the subpoena was issued a statement, certified by the person who made the service, setting forth the date and manner of service, the county in which it was served, the names of the persons served, and the name, address and telephone number of the person making the service.

(d) Protection of Persons Subject to Subpoenas.

(1) In General.

(A) On timely motion, the court from which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, (iii) designates an improper place for examination, or (iv) subjects a person to undue burden or expense.

(B) If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, the court may order appearance or production only upon specified conditions.

(2) Subpoenas for Production or Inspection.

(A) A person commanded to produce and permit inspection and copying of designated books, papers, documents, electronically stored information, or tangible things, or to permit inspection of premises need not appear in person at the place of production or inspection unless commanded by the subpoena to appear for deposition, hearing or trial. Unless for good cause shown the court shortens the time, a subpoena for production or inspection shall allow not less than ten days for the person upon whom it is served to comply with the subpoena. A copy of all such subpoenas shall be served immediately upon each party in accordance with Rule 5. A subpoena commanding production or inspection will be subject to the provisions of Rule 26(d).

(B) The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move at any time upon notice to the person served for an order to compel the production or inspection.

(C) The court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (i) quash or modify the subpoena if it is unreasonable or oppressive, or (ii) condition the denial of the motion upon the advance by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

(e) Duties in Responding to Subpoena.

(1) Producing Documents or Electronically Stored Information.

(A) Documents.

A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified.

If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form.

The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible Electronically Stored Information.

The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery, motion for a protective order, or motion to quash, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(5). The court may specify conditions for the discovery, including those listed in Rule 26(b)(5).

(2) Claiming Privilege or Protection

(A) Information Withheld.

When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

(B) Information Produced.

If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(f) Sanctions.

On motion of a party or of the person upon whom a subpoena for the production of books, papers, documents, electronically stored information, or tangible things is served and upon a showing that the subpoena power is being exercised in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the party or the person upon whom the subpoena is served, the court in which the action is pending shall order that the subpoena be quashed and may enter such further orders as justice may require to curb abuses of the powers granted under this rule. To this end, the court may impose an appropriate sanction.

(g) Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court from which the subpoena issued.

General practice is to file a motion to quash the subpoena prior to the date of the scheduled deposition/testimony, although an alternative might be to have the witness show up and assert the privilege at the event.  The risk in that scenario would be that it might provide a basis for an argument for a contempt order.  On the other hand, it does allow an opportunity to learn the questions to which answers were sought for examination and evaluation of those questions by the court.  The determination of the procedure is best left to the attorney who can consider the facts at hand.

For the most part, neither Rule 11-514 nor the statutory privilege applicable to nonjudicial proceedings imposes any special procedural requirements on those who would subpoena – or resist subpoenas for – confidential information or the identities of confidential sources. Accordingly, much of the following discussion concerns the general New Mexico law relating to judicial subpoenas. Subpoenas issued by legislative, administrative, and executive bodies are beyond the scope of this outline, except to the extent that the statutory reporter’s privilege applicable to nonjudicial proceedings specifically addresses them.

New York courts are bound by the New York Civil Practice Laws and Rules ("CPLR"), which govern the procedures for both serving and opposing a subpoena of a party or non-party to an action. In addition, the Uniform Rules for the New York State Trial Courts ("Uniform Rules") and certain local rules may contain procedural and substantive requirements. This section focuses on the CPLR and, to a lesser extent, on the Uniform Rules. The local rules, as well as a particular judge's individual rules (many of which are available online), should be reviewed prior to responding to a subpoena.

Oregon State Courts are bound by the Oregon Rules of Civil Procedure ("ORCP") and the Uniform Trial Court Rules (“UTCR”). In addition, individual counties may have supplemental "Local Rules" that contain procedural requirements. These rules should be consulted.

In Texas, serving a subpoena on a reporter or media organization is no different than serving a subpoena on anyone else. There is no special proceeding or showing that needs to be made before a subpoena is served. However, subpoenas should not be lightly served on the media in light of the strong statutory protections afforded reporters and media organizations in the Texas Free Flow of Information Act.  See generally Tex. Civ. Prac. & Rem. Code §22.021 et seq. and Tex. Code Crim. Proc. arts. 38.11, 38.111.  Private litigants wishing to acquire information about their case should attempt to exhaust all non-media sources before burdening the press with a subpoena. Irrelevant subpoenas will, justifiably, provoke strong responses, costing both parties additional legal expenses and time.

A subpoena is, in essence, a court order commanding the subpoenaed person or entity to appear to testify or to permit inspection of documents or items. The issuance of subpoenas in civil cases is governed by the Texas Rules of Civil Procedure. In criminal cases, the issuance of a subpoena is governed by the Texas Code of Criminal Procedure.

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 and testimony of a person residing in the state or a person served within the state. Utah R. Civ. P. 4(d); Utah R. Civ. P. 45(b)(1) and 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 in a civil case requiring appearance at trial or a hearing may be served anywhere in the state. Utah R. Civ. P. 45(c).

In West Virginia, there are no special legal procedures required to serve a subpoena on a member of the press.

The shield law imposes rigid requirements before a subpoena can be issued to a member of the news media. If the information sought is confidential, it cannot be obtained by subpoena under any circumstance.

For non-confidential information, a subpoena compelling a news person to testify about, disclose, or produce any news, information, or source can be issued only by a circuit court, not an attorney.  Before such a subpoena will be issued, the news person must receive notice and have an opportunity to be heard.  Wis. Stat. § 885.14(2)(b).

The person requesting the subpoena must establish, by clear and convincing evidence:

“In a criminal prosecution or investigation that there are reasonable grounds to believe that a crime has occurred[, or i]n a civil action or proceeding that the complaint states a claim upon which relief may be granted.”  Wis. Stat. § 885.14(2)(b).

Once those prerequisites are satisfied, the circuit court may issue a subpoena only if four additional conditions are all met:

1. The news, information, or identity of the source is highly relevant to the investigation, prosecution, action, or proceeding.

2. The news, information, or identity of the source is necessary to the maintenance of a party's claim, defense, or to the proof of an issue material to the investigation, prosecution, action, or proceeding.

3. The news, information, or identity of the source is not obtainable from any alternative source for the investigation, prosecution, action, or proceeding.

4. There is an overriding public interest in the disclosure of the news, information, or identity of the source.

Wis. Stat. § 885.14(2)(c).

Wisconsin's civil subpoena procedures are set out in Wis. Stat. chapter 885.