CR 45 - Subpoena

• Proposed Changes to CR 45 - Subpoena (in Word Format)
• Comments Received for CR 45 - Subpoena

GR 9 COVER SHEET

Suggested Amendment to Civil Rule (CR) 45
concerning Subpoena

Submitted by the Washington State Bar Association

Purpose: The suggested amendments to CR 45 are primarily intended to conform the rule, to the extent practicable, to Rule 45 of the Federal Rules of Civil Procedure. Additional changes are designed to improve its organization and usefulness. As a whole, this suggested revision will comprehensively consolidate and clarify the rule regarding subpoenas in civil actions, modernize its requirements to reflect current practice in the State of Washington, and eliminate archaisms and anachronisms.

An important substantive change relates to the content of and manner in which a party issues a subpoena duces tecum. Currently, Washington law under CR 45 differs from federal practice in that CR 45 does not clearly recognize the so-called document-only subpoena, i.e., a subpoena that requires the recipient to produce documents or records but that is not joined with an obligation on the part of the recipient to appear and testify. Since 1991, the federal rule has expressly permitted issuance of a subpoena for production and inspection of documents and tangible things independent of any command for a person’s attendance at a deposition. Although some practitioners in Washington dispense with the formality of scheduling a “records deposition,” CR 45 does not clearly authorize such a procedure. See 15A Washington Practice Series: Washington Handbook on Civil Procedure § 49.12 (2006 ed.) (“the federal language is not found in Washington’s version of the rule, and the legal authority for this procedure is less than obvious”). Typically, when a records deposition is noted, the actual deposition is avoided when the recipient voluntary agrees to deliver all the requested records and the requesting party’s lawyer agrees to cancel the scheduled deposition.

The more streamlined federal procedure, incorporated into paragraphs (a)(1)(C), (a)(3), and (c)(2)(A) of the suggested rule, is designed to codify this practice. This is a well-established federal practice and its proposed adoption in Washington is uncontroversial. The change will serve the interests of both litigants and subpoena recipients and aid in securing the just, speedy, and inexpensive determination of actions.

A related provision, found in paragraph (b)(2) of the suggested rule, requires that a copy of a document-only subpoena be served on all parties five days prior to service of the subpoena on the designated recipient. This requirement is designed to allow parties sufficient time to assert any privileges or objections prior to the recipient complying with the subpoena by delivery of documents to the issuing party. Although Fed. R. Civ. P. 45(b)(1) similarly requires that “[p]rior notice of any commanded production of documents . . . be served on each party,” the federal rule does not specify a five-day notice period.

Additionally, the second sentence of paragraph (a)(3) is intended to foreclose the dubious practice of attempting to use a subpoena to compel production of documents from a party without complying with the time requirements of CR 34 governing requests for production directed to a party. Similarly, CR 30(b)(5) (addressing deposition notices accompanied by CR 34 requests) applies the procedures specified in rule 34, including the prescribed time limits, to depositions of parties.

A second significant change is the addition of express provisions designed for the protection of persons subject to subpoenas. These provisions, contained in paragraph (c) of the suggested rule, are in substantial part identical to those of Fed. R. Civ. P. 45(c). None of these procedures or remedies is inconsistent with existing Washington practice. The actual language of suggested paragraph (c) is included in the form subpoena incorporated into the rule in paragraph (h).

The suggested amendments to CR 45 also incorporate a new paragraph (d), which imposes duties on the recipients of subpoenas. Under subsection (d)(1), a person responding to a subpoena requiring production of documents must produce them as they are maintained in the usual course of business or, alternatively, organize and label them to correspond to categories in the subpoena. Subsection (d)(2) imposes an affirmative obligation to expressly claim privilege if documents are withheld from production and to describe such documents with sufficient particularity to allow the requesting party to contest the claim. The provisions in paragraph (d) correspond to the requirements imposed on a party in responding to a request for production under CR 34. Suggested CR 45(d) is identical to Fed. R. Civ. P. 45(d).

Remaining distinctions between the federal rule and the suggested revision to CR 45 are chiefly attributable to the existence of Washington statutes that continue to govern subpoena procedure to some extent. See RCW ch. 2.40 & ch. 5.56. These statutes govern witness fees, mileage, and other allowances, and impose requirements on the issuance of trial subpoenas that do not apply to issuance of deposition or document subpoenas. These statutes account for variances from the federal rule throughout the suggested revision, as well as for the inclusion of paragraphs (e) and (f), which have no counterpart in the federal rule.

Finally, to guide practitioners in making the transition from the current rule to the revised rule, a suggested form (“Subpoena in a Civil Case”) is included and set forth in paragraph (h).

Owing to important distinctions between civil and criminal practice, particularly relating to the issue of providing notice of subpoenas seeking production of documentary and tangible evidence, a simultaneous revision to the Criminal Rules is suggested to separately address the issuance of subpoenas in criminal matters. See the statement of purpose for the suggested amendment to CrR 4.8.