Rule 45.Subpoena

Rule 15-6-45 opens by saying who can put a subpoena in a witness’s hands. Clerks, judges, magistrates, notaries, referees, and other officers or agencies with statutory power may issue one for a matter pending before them, on application from someone with a pending cause or matter. So can any attorney of record in good standing on the State Bar’s active list, for a witness or for production, inspection, and copying of records, in any civil or criminal action, proceeding, or collateral hearing where that attorney represents a party. An attorney who issues a subpoena has to send a copy to the clerk or other filing officer at the same time, for the record. A subpoena must name the court or tribunal, the case, and command the recipient to appear and testify at a stated time and place, and it must name the party the testimony is for. Court-issued subpoenas carry the court’s seal; attorney-issued ones are issued in the presiding officer’s name, attested and signed by the attorney, who identifies the client. And every subpoena must carry, in bold capital letters just above the signature, a warning to treat the document like a court order, that noncompliance without adequate excuse can lead to contempt and monetary or other sanctions, and that the recipient may want to talk to an attorney about their rights and obligations.

A subpoena seeking documents or tangible things can stand on its own, whether or not it also demands testimony or accompanies a deposition notice. Before it goes out to the person who has to produce the material, every party to the case has to get notice and a copy first. On a timely motion, the court can quash or modify the subpoena if it is unreasonable or oppressive, or deny the motion on the condition that the side who wants the material advances the reasonable cost of producing it. Service works like serving a summons, minus service by publication, timed so the witness can reach the place by any ordinary way of getting there. The person serving the subpoena has to tender one day’s witness fee and mileage at the time of service, or get it waived, and note that in the return; a witness who is not paid does not have to obey, and after the first day, a witness can demand each day’s fee before staying longer. The state and its political subdivisions do not have to tender fees at all.

A subpoena that supports a deposition works a little differently. Proof that a deposition notice went out is itself enough authorization to issue subpoenas for the people named in it, and those subpoenas can also demand documents or things within the ordinary discovery scope, subject to the protective-order and quash-or-modify rules found elsewhere in this rule and in Rule 15-6-26(c). Anyone served with that kind of subpoena has ten days, or less if the subpoena sets a shorter deadline, to object in writing to inspecting or copying the material; once an objection is made, the party who wants the material needs a court order, sought on notice to the deponent, to get it. Where the deposition happens also has limits: a South Dakota resident can be required to attend only in the county of residence, employment, or business, or wherever the court sets as a convenient alternative; a nonresident can be required to attend only in the county where served, or at a court-ordered place. Subdivision (e) has since been superseded, so the rule runs from (d) straight to (f).

Failing to obey a subpoena without an adequate excuse can be treated as contempt, either of the court where the case is pending or of the court that issued the subpoena. A nonresident who is served with a subpoena while in South Dakota still has to obey it, though mileage gets figured from the place of service rather than from wherever that person lives.