Subpoenas – New Rule 45

NEW REQUIREMENTS FOR RULE 45 – SUBPOENAS

The Janaury 2013 issue of The Colorado Lawyer has an article on the new Rule 45 – Subpoenas. Colorado Judicial branch nows has a new form subpoena that can be found through our resource page: /Resources.shtml

What does this mean for practicing attorneys? We need to tweak our subpoena procedure and forms.

The new requirements call for more detail in the subpoena. For example, we need to identify the court, the case, all parties and counsel in the case, and exactly what the subpoena is commanding. We also need to state what, if any, method we will use to record testimony commanded by a subpoena. Is it a subpoena to produce documents only, or is it a subpoena to appear to testify? Be clear and be specific on dates, deadlines, and locations.

Does this new rule help attorneys issuing a subpoena? Yes! The new Rule 45 allows subpoenas to produce documents without requiring a deposition to be scheduled when all you want is the documents. Be aware that you now have to serve a subpoena to produce 14 days prior to the requested production date, unless you have an expedited hearing. We still must obtain personal service, but there are now methods to modify this requirement when a recipient is avoiding service.

Does the new rule help recipients of a subpoena? Yes! We now have to spell out a specific statement from Rule 45(c) notifying the recipient of the protections afforded him by the rule. The recipient is also protected from subpoenas to produce that impose an undue burden or expense. They have an opportunity to request a narrower scope and then to request sanctions if that is not done.

Does the new rule help individuals that hold a privilege in relation to the documents requested? Yes! A subpoena requesting privileged documents must be accompanied by an authorization by the privilege holder or by a court order.

This new rule requires more detailed subpoenas and additional procedures, but it affords new protections to recipients and privilege holders. It also give the issuing attorney new avenues when facing difficult recipients. Make sure to review the new Rule 45 before issuing your next subpoena!

Kelley Shirk, Esq.