New CR 45

Posted on October 10, 2007 by Robert Boggs

Attention Washington lawyers!  If you have not been reading your advance sheets lately you will want to because you will find that a brand new CR 45 "Subpoena" went into effect September 1, 2007.  What is interesting or maybe even alarming is that the new rule adds significantly to what is required in the text of a subpoena.

It says in the first section (a) the following:

(a) Form; Issuance.
 
  (1) Every subpoena shall:
 
     (A) state the name of the court from which it is issued;
 
     (B) state the title of the action, the name of the court in which it
is pending, and its case number;
 
     (C) 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 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; and
 
     (D) set forth the text of subsections (c) and (d) of this rule.
 
The text of subsections (c) and (d) are quite lengthy as you can see:
 
(c) Protection of Persons Subject to Subpoenas.
 
  (1) A party or an attorney responsible for the issuance and service of a
subpoena shall take reasonable steps to avoid imposing undue burden or
expense on a person subject to that subpoena. The court shall enforce this
duty and impose upon the party or attorney in breach of this duty an
appropriate sanction, which may include, but is not limited to, lost
earnings and a reasonable attorney's fee.
 
  (2)  (A) A person commanded to produce and permit inspection and copying
of designated books, papers, documents or tangible things, or inspection of
premises need not appear in person at the place of production or inspection
unless commanded to appear for deposition, hearing or trial.
 
       (B) Subject to subsection (d)(2) of this rule, a person commanded to
produce and permit inspection and copying may, within 14 days after service
of the subpoena or before the time specified for compliance if such time is
less than 14 days after service, serve upon the party or attorney
designated in the subpoena written objection to inspection or copying of
any or all of the designated materials or of the premises.  If objection is
made, the party serving the subpoena shall not be entitled to inspect and
copy the materials or inspect the premises except pursuant to an order of
the court by which the subpoena was issued.  If objection has been made,
the party serving the subpoena may, upon notice to the person commanded to
produce and all other parties, move at any time for an order to compel the
production.  Such an order to compel production shall protect any person
who is not a party or an officer of a party from significant expense
resulting from the inspection and copying commanded.
 
  (3)  (A) On timely motion, the court by which a subpoena was issued shall
quash or modify the subpoena if it:
       (i) fails to allow reasonable time for compliance;
       (ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this
rule;
       (iii) requires disclosure of privileged or other protected matter
and no exception or waiver applies; or
       (iv) subjects a person to undue burden, provided that the court may
condition denial of the motion upon a requirement that the subpoenaing
party advance the reasonable cost of producing the books, papers,
documents, or tangible things.
 
     (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, to protect a person subject to or affected by the subpoena,
quash or modify the subpoena or, if the party in whose behalf the subpoena
is issued shows a substantial need for the testimony or material that
cannot be otherwise met without undue hardship and assures that the person
to whom the subpoena is addressed will be reasonably compensated, the court
may order appearance or production only upon specified conditions.
 
 
(d) Duties in Responding to Subpoena.
 
  (1) 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.
 
  (2) 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.
 

 If you don't believe me check it out here.

 

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