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Rule 45.Subpoena

Group VI: Trials · Last amended May 5, 2021 · Last verified July 15, 2026

In one sentenceRule 45 governs how a North Dakota subpoena is issued, served, and enforced — what it must contain, who can issue one, how the person subject to it can object or ask the court to quash or modify it, and what happens if a served person fails to comply.

Full Text of Rule 45

Text sizeJump to: (a) (b) (c) (d) (e) (f)

(a) In general.
(1) Form and contents.
(A) Requirements. Every subpoena must:
(i) state the title of the action, the court in which it is pending, and its civil-action number;
(ii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody or control; or permit the inspection of premises; and
(iii) if the subpoena seeks only pretrial or prehearing production of documents, electronically stored information, or tangible things or the inspection of premises, set out the text of the notice in Rule 45(f).
(B) Command to attend a deposition; Notice of the recording method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(C) Combining or separating a command to produce or permit inspection; Specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing or trial or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced. The phrase "electronically stored information" includes reasonably accessible metadata that will enable the party seeking production to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless the party seeking production and the subject of the subpoena agree otherwise or the court orders otherwise on motion and a showing of good cause for the production of certain metadata.
(D) Command to produce; Included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding party to permit inspection, copying, testing or sampling of the materials.
(2) Issued by whom. The clerk must issue a subpoena in the name of the court for the county in which the action is filed, signed but otherwise blank, to a party who requests it. That party must complete it before service. An attorney authorized to practice in North Dakota also may issue a subpoena, which must be signed by the attorney, include the attorney's office address and identify the party the attorney represents.
(3) Subpoena in out-of-state-action. N.D.R.Ct. 5.1 defines the procedure for discovery or depositions in an out-of-state action.
(b) Service; Notice.
(1) Service of subpoena.
(A) A subpoena to a named person must be served under Rule 4(d). A subpoena may be served at any place within the state.
(B) If the subpoena requires the person's attendance, fees for one day's attendance, mileage and travel expense allowed by law must be tendered. If fees, mileage and travel expenses are not tendered with the subpoena, the person need not obey the subpoena. Fees, mileage and travel expense need not be tendered if they are to be paid by the state or a political subdivision.
(2) Service of notices.
(A) Notice of deposition. If the subpoena commands a person to attend, give testimony and produce documents, electronically stored information or tangible things at a pretrial deposition, then before the subpoena is served, a notice to take a deposition must be served on each party.
(B) Notice of a demand for production or inspection. If a deposition notice has not been served, and if the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice of demand for production or inspection must be served on each party.
(C) Notice mandatory before service of subpoena. The notice required by Rule 45(b)(2)(A) and (B) must be served on each party under Rule 5(b) before a subpoena for a pretrial deposition, for pretrial production of documents, electronically stored information, or tangible things or for the inspection of premises may be served.
(c) Protecting a person subject to a subpoena.
(1) Avoiding undue burden or expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, on a party or attorney who fails to comply.
(2) Command to produce materials or permit inspection.
(A) Appearance not required. A person commanded to produce documents, electronically stored information or tangible things, or to permit the inspection of premises need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing or trial.
(B) Objections. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises or to producing electronically stored information in the form or forms requested. The objection must be received before the earlier of 24 hours before the time specified for compliance or ten days after the subpoena is served. If an objection is made, the following rules apply:
(i) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.
(3) Location.
(A) Resident witness. A subpoena may require a resident of this state to attend a deposition only in the county where the person resides, is employed or transacts business in person, or at a convenient place ordered by the issuing court. A resident may be required to attend a hearing or trial any place within this state.
(B) Non-resident witness. A subpoena may require a nonresident of this state who is served with a subpoena within this state to attend a deposition, hearing or trial in any county of this state.
(4) Quashing or modifying a subpoena.
(A) When required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires attendance beyond the location requirements of Rule 45(c)(3);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research, development, or commercial information; or
(ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.
(C) Specifying conditions as an alternative. In the circumstances described in Rule 45(c)(4)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions if the serving party:
(i) shows substantial need for the testimony or material that cannot be otherwise be met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in responding to a subpoena.
(1) Producing documents or electronically stored information.
(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.
(B) Form for producing electronically stored information. 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 or to quash, the person from whom discovery is sought must show that the information sought 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)(1)(B). The court may specify conditions for discovery.
(2) Claiming privilege or protection.
(A) Information withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial preparation material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess 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 receiving 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 receiving 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.
(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3).
(f) Notice. All subpoenas commanding only pretrial or prehearing production of documents, electronically stored information, or tangible things or the inspection of premises must contain the following notice:
"You may object to this subpoena by sending or delivering a written objection, stating your valid reason, to [Insert the name and address of the party, or attorney representing the party seeking production of documents, electronically stored information, or tangible things or the inspection of premises]. Any objection must be received within ten days after you receive the subpoena. If the time specified in the subpoena for compliance is less than ten days, any objection must be received at least 24 hours before the time specified for compliance.
If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.
Failure to obey this subpoena, without making a timely objection, and stating a valid reason, may be contempt of court."
End

Explanatory Note

Rule 45 was amended, effective July 1, 1981; January 1, 1988; January 1, 1995; March 1, 1997; March 1, 1999; March 1, 2007; March 1, 2008; March 1, 2009; March 1, 2012; March 1, 2013; March 1, 2014; March 1, 2017; May 5, 2021.

Rule 45 was revised, effective January 1, 1995, in response to the 1991 federal revision. Significant changes to North Dakota's rule include the following: (1) An action must be filed before a subpoena may issue; (2) A subpoena may compel a non-party to produce evidence independent of any deposition; (3) A subpoena may compel the inspection of premises in the possession of a non-party; and (4) Notice must be printed on a subpoena advising of the right to object when pretrial or prehearing production or inspection is commanded. The scope of discovery under Rule 26 is not intended to be altered by the revision.

Rule 45 was amended, effective March 1, 2008, in response to the 2006 federal revision. Language was added to the rule to clarify that production of electronically stored materials may be demanded by subpoena and to provide guidance in dealing with requests for electronically stored materials.

Rule 45 was amended, effective March 1, 2009, in response to the 2007 amendments to Fed.R.Civ.P. 45. The language and organization of the rule were changed to make the rule more easily understood and to make style and terminology consistent throughout the rules.

Subparagraph (a)(1)(A)(iii) was amended, effective March 1, 2013, to clarify that the notice required by subdivision (f) must be made part of the subpoena when the subpoena seeks only pretrial or prehearing production of documents, electronically stored information, or tangible things or the inspection of premises.

Subparagraph (a)(1)(C) was amended, effective March 1, 2014, to explain that the phrase "electronically stored information" includes reasonably accessible metadata.

Paragraph (a)(2) was amended, effective March 1, 2017, to remove the requirement that a subpoena issued by a clerk have a seal affixed.

Paragraph (a)(3) was amended, effective March 1, 2013, to direct persons to N.D.R.Ct. 5.1 for information about how to proceed with discovery in this state in an action pending in an out-of-state court. N.D.R.Ct. 5.1 outlines procedure for interstate depositions and discovery.

Subdivision (b) was amended, effective March 1, 2008, to eliminate the requirement for parties to serve a separate notice for production when commanding a person to attend a deposition to give testimony and produce documents or things.

Paragraph (b)(2) was amended, effective March 1, 2009, to make it clear that notice must be served on each party in a matter before a subpoena to take testimony or for production is served.

Paragraph (c)(4)(C) was amended, effective May 5, 2021, to correct a cross-reference.

Subdivision (f) was amended, effective March 1, 1999, to allow an objection to a subpoena to be sent via a commercial carrier as an alternative to mail.

Plain-English Summary

Rule 45(a) sets the baseline requirements for every subpoena: it must state the title of the action, the court, and the civil-action number, and it must command the person to whom it is directed to attend and testify, produce documents or electronically stored information, or permit inspection of premises at a specified time and place. A subpoena seeking only pretrial or prehearing production must include the notice text set out in Rule 45(f), and one commanding attendance at a deposition must state how the testimony will be recorded. A command to produce may be folded into an attendance subpoena or issued separately, and it can specify the form for electronically stored information — a phrase that reaches reasonably accessible metadata like send and receive dates, authors, and recipients, but not other metadata unless the parties agree or the court orders it for good cause. The clerk issues a blank, signed subpoena to any requesting party, who fills it in before service, and an attorney licensed to practice in North Dakota can issue and sign one directly, listing an office address and identifying the represented party.

Rule 45(b) covers service. A subpoena to a named person is served under Rule 4(d) and can be served anywhere within the state. If it requires the person's attendance, the rule requires tendering witness fees for one day, plus mileage and travel expenses, unless those costs will be paid by the state or a political subdivision — without that tender, the person need not obey. And before a subpoena commanding a deposition or pretrial production is even served, a notice of the deposition or a notice of demand for production must go to every other party in the case.

Rule 45(c) protects the person the subpoena is aimed at. The issuing party or attorney must take reasonable steps to avoid undue burden or expense, on pain of sanctions that can include lost earnings and attorney's fees. A person commanded only to produce documents or permit inspection does not have to appear in person unless also commanded to a deposition, hearing, or trial, and can object in writing — received before the earlier of 24 hours before the compliance time or ten days after service — which shifts the burden to the serving party to move to compel. Location limits protect resident and nonresident witnesses alike, and the court must quash or modify a subpoena that allows unreasonable time to comply, exceeds those location limits, demands privileged material, or imposes undue burden; it may also quash or modify one that would force disclosure of a trade secret or an unretained expert's opinion, or instead impose conditions if the serving party shows substantial need and ensures reasonable compensation.

Rule 45(d) fills in how a person responds — producing documents as they are kept in the ordinary course of business or organized to match the demand's categories, producing electronically stored information in a reasonably usable form, and asserting privilege by expressly claiming it and describing enough about the withheld material to let the parties assess the claim, with a clawback procedure if privileged material slips through. Rule 45(e) lets the issuing court hold a noncompliant person in contempt, though a nonparty is excused if the subpoena required attendance or production beyond the rule's location limits.

Frequently Asked Questions

Who can issue a subpoena in a North Dakota civil case?

Rule 45(a)(2) allows the clerk to issue a blank, signed subpoena to any party who requests one, which that party then completes before service, or an attorney authorized to practice in North Dakota may issue and sign a subpoena directly, including an office address and identifying the represented party.

How long do I have to object to a subpoena demanding documents?

Under Rule 45(c)(2)(B), a written objection must be received before the earlier of 24 hours before the time specified for compliance or ten days after the subpoena is served.

Do I have to show up in person if a subpoena only asks me to produce documents?

No. Rule 45(c)(2)(A) says a person commanded only to produce documents, electronically stored information, or tangible things, or to permit inspection, need not appear in person unless also commanded to appear at a deposition, hearing, or trial.

When must a court quash or modify a subpoena?

Rule 45(c)(4)(A) requires the issuing court to quash or modify a subpoena that fails to allow reasonable time to comply, requires attendance beyond the rule's location limits, requires disclosing privileged or protected matter without an applicable exception, or subjects a person to undue burden.

What happens if I ignore a subpoena?

Rule 45(e) lets the issuing court hold a person in contempt for failing, without adequate excuse, to obey after being served. A nonparty is excused from that consequence if the subpoena required attendance or production beyond the location limits set out in Rule 45(c)(3).

Source & verification. Rule text and the Explanatory Note are reproduced verbatim from the North Dakota Rules of Civil Procedure, adopted by the Supreme Court of North Dakota. Last verified July 15, 2026. · Official source
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