Arizona

Civil Procedure

Civil Procedure

Rule 45 – Subpoena

(a)Generally

(1)Requirements-Generally. Every subpoena must:

(A) state the name of the Arizona court from which it issued;
(B) state the title of the action, the name of the court in which it is pending, and its civil action number;
(C) command each person to whom it is directed to do the following at a specified time and place:

(i) attend and testify at a deposition, hearing, or trial;
(ii) produce and permit inspection, copying, testing, or sampling of designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or
(iii) permit the inspection of premises; and
(D) be substantially in the form set forth in Rule 84, Form 9.
(2)Issuance by Clerk. The clerk must issue a signed but otherwise blank subpoena to a party requesting it. That party must complete the subpoena before service. The State Bar of Arizona may also issue signed subpoenas on behalf of the clerk through an online subpoena issuance service approved by the Supreme Court.
(b) Subpoena for Deposition, Hearing, or Trial; Duties; Objections.

(1)Issuing Court. A subpoena commanding attendance at a hearing or trial must issue from the superior court in the county where the hearing or trial is to be held. Except as otherwise provided in Rule 45.1, a subpoena commanding attendance at a deposition must issue from the superior court in the county where the action is pending.
(2)Combining or Separating a Command to Produce or to Permit Inspection. 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.
(3)Place of Appearance.

(A)Trial Subpoena. Subject to Rule 45(e)(2)(B) (iii), a subpoena commanding attendance at a trial may require the subpoenaed person to travel from anywhere within the state.
(B)Deposition or Hearing Subpoena. A subpoena commanding a person who is neither a party nor a party’s officer to attend a deposition or hearing may not require the subpoenaed person to travel to a place other than:

(i) the county where the person resides or transacts business in person;
(ii) the county where the person is served with a subpoena, or within 40 miles from the place of service; or
(iii) such other convenient place fixed by a court order.
(4)Command to Attend a Deposition-Notice of Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.
(5)Objections; Appearance Required. Objections to a subpoena commanding attendance at a deposition, hearing, or trial, must be made by timely motion under Rule 45(e)(2). Unless excused from doing so by the party or attorney serving a subpoena, by a court order, or by any other provision of this Rule 45, a person who is properly served with a subpoena must attend and testify at the date, time, and place specified in the subpoena.
(c) Subpoena to Produce Materials or to Permit Inspection; Duties; Objections.

(1)Issuing Court. If separate from a subpoena commanding attendance at a deposition, hearing, or trial, a subpoena commanding a person to produce designated documents, electronically stored information, or tangible things, or to permit the inspection of premises, must issue from the superior court in the county where the production or inspection is to be made.
(2)Electronically Stored Information.

(A)Specifying the Form for Electronically Stored Information. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(B)Form for Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding may produce it in native form or in another reasonably usable form that will enable the receiving party to have the same ability to access, search, and display the information as the responding person.
(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 expense, including sources that are unduly burdensome or expensive to access because of the past good-faith operation of an electronic information system or good-faith and consistent application of a document retention policy. Any such objection must be made in the time and manner provided in Rule 45(c)(6). On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or expense. 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) and (b)(2). The court may specify conditions for the discovery Rule 26(e) applies to any motion to quash, motion for protective order, or motion to compel concerning an objection that electronically stored information is not reasonably accessible.
(3)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 the subpoena also commands attendance at a deposition, hearing, or trial.
(4)Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the usual course of business, or organize and label them to correspond with the categories in the demand.
(5) Claiming Privilege or Protection.

(A) A person withholding subpoenaed information under a claim that it is privileged or subject to protection as work-product material must promptly comply with Rule 26(b)(6)(A), unless a timely objection is made under Rule 45(c)(6)(A) that providing the information required by Rule 26(b)(6)(A) would impose an undue burden or expense. If such an objection is made, the procedures in Rule 45(c)(6)(C) apply. On any such objection, unless the court orders otherwise for good cause, a subpoenaing party requesting a privilege log must pay the subpoenaed person’s reasonable expenses in preparing the log.
(B) If information produced in response to a subpoena is subject to a claim of privilege or of protection as work-product material, the person making the claim and the receiving parties must comply with Rule 26(b)(6)(A) or, if applicable, Rule 26(b)(6)(B).
(6)Objection Procedures; Duty to Confer.

(A)Form and Time for Objection.

(i) A person commanded to produce documents, electronically stored information, or tangible things, or to permit inspection, may serve a written objection to producing, inspecting, copying, testing, or sampling any or all of the materials; to inspecting the premises; or to producing electronically stored information in the form or forms requested or from sources that are not reasonably accessible because of undue burden or expense, including sources that are unduly burdensome or expensive to access because of the past good-faith operation of an electronic information system or good-faith and consistent application of a document retention policy. The objection must state the basis for the objection, and must include the name, address, and telephone number of the person, or the person’s attorney, serving the objection.
(ii) The objection must be served on the party or attorney serving the subpoena before the time specified for compliance or within 14 days after the subpoena is served, whichever is earlier.
(iii) A person served with a subpoena that combines a command to produce materials or to permit inspection, with a command to attend a deposition, hearing, or trial, may object to any part of the subpoena. A person objecting to the part of a combined subpoena that commands attendance at a deposition, hearing, or trial must attend and testify at the date, time, and place specified in the subpoena, unless excused as provided in Rule 45(b)(5).
(B)Procedure After Objecting.

(i) A person objecting to a subpoena to produce materials or to permit inspection need not comply with those parts of the subpoena that are the subject of the objection, unless ordered to do so by the issuing court. The objecting person also may move for a protective order or to modify or quash the subpoena.
(ii) The party serving the subpoena may move under Rule 37(a) to compel compliance with the subpoena. The motion must comply with Rule 37(a)(1), and must be served on the subpoenaed person and all other parties under Rule 5(c).
(iii) Any order to compel entered by the court must protect a person who is neither a party nor a party’s officer from undue burden or expense resulting from compliance.
(C) Duty to Confer. Before bringing any motion to compel, motion to quash, or motion for protective order regarding compliance with a subpoena, the movant must attempt to resolve the dispute by good faith consultation with the opposing party or person. Any motion regarding compliance with a subpoena must be accompanied by a good faith consultation certificate under Rule 7.1(h). Absent agreement of the subpoenaed person, the expedited procedures in Rule 26(d) do not apply to motions under this rule.
(7)Production to Other Parties. Unless otherwise stipulated by the parties or ordered by the court, a party receiving documents, electronically stored information, or tangible things in response to a subpoena must promptly make such materials available to all other parties for inspection and copying, along with any other disclosures required by Rule 26.1.
(d) Service.

(1)General Requirements; Tendering Fees. A subpoena may be served by any person who is not a party and is at least 18 years old. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering to that person the fees for one day’s attendance and the mileage allowed by law.
(2)Exceptions to Tendering Fees. Fees and mileage need not be tendered when the subpoena commands attendance at a trial or hearing or is issued on behalf of the State of Arizona or any of its officers or agencies.
(3)Notice to, and Service on Other Parties. A copy of every subpoena and any proof of service must be served on every other party in accordance with Rule 5(c). If the subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, a notice and a copy of the subpoena must be served on each party at least 2 days before it is served on the person to whom it is directed.
(4)Service Within the State. A subpoena may be served anywhere within the state.
(5)Proof of Service. Proof of service may not be filed except as allowed by Rule 5.1(c)(2)(A). Any such filing must be with the court clerk for the county where the action is pending and must include the server’s certificate stating the date and manner of service and the names of the persons served.
(e) Protecting a Person Subject to a Subpoena; Motion to Quash or Modify.

(1)Avoiding Undue Burden or Expense; Sanctions.

(A) Generally. A party or an attorney responsible for serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. Absent good cause, a subpoena may not seek production of materials that have already been produced in the action or that are available from parties to the action.
(B) Subpoena to Produce Materials or to Inspect Premises. Unless otherwise ordered by the court for good cause, the party seeking discovery must pay the reasonable expenses incurred by the subpoenaed person in responding to a subpoena seeking the production of documents, electronically stored information, tangible things, or an inspection of premises. A subpoenaed person seeking payment of expenses other than routine clerical and per-page copying costs as allowed by statute must object on the grounds that the expenses will cause an undue burden without payment by the subpoenaing party, and must provide an advance estimate of those expenses. The procedures in Rule 45(c)(6) govern any such objection. On any dispute, the court may quash or modify the subpoena or may, in the alternative, specify conditions that include the payment of such additional expenses by the subpoenaing party and the payment of expenses in advance. The issuing court must impose an appropriate sanction-which may include lost earnings and reasonable attorney’s fees-on a party, or person attorney who fails to comply with Rule 45(e)(1)(A) or (B).
(2)Quashing or Modifying a Subpoena.

(A)When Required. On timely motion, the court in the county where the case is pending or from which a subpoena was issued must quash or modify a subpoena if it:

(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party’s officer to travel to a location other than the places specified in Rule 45(b)(3)(B);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden or expense.
(B)When Permitted. On timely motion, the superior court in the county where the case is pending or from which a subpoena was issued may quash or modify a subpoena if:

(i) it requires disclosing a trade secret or other confidential research, development, or commercial information;
(ii) it requires 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;
(iii) it requires a person who is neither a party nor a party’s officer to incur substantial travel expense; or
(iv) justice so requires.
(C)Specifying Conditions as an Alternative. In the circumstances described in Rule 45(e)(2)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions, including any conditions and limits set forth in Rule 26(c), as the court deems appropriate:

(i) if the party or attorney serving the subpoena shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship; and
(ii) if the person’s travel expenses or the expenses resulting from the production are at issue, the party or attorney serving the subpoena assures that the subpoenaed person will be reasonably compensated for those expenses.
(D)Time for Motion. A motion to quash or modify a subpoena must be filed before the time specified for compliance or within 14 days after the subpoena is served, whichever is earlier.
(E)Service of Motion. Any motion to quash or modify a subpoena must be served on the party or the attorney serving the subpoena. The party or attorney who served the subpoena must serve a copy of any such motion on all other parties.
(f) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. A failure to obey must be excused if the subpoena purports to require a person who is neither a party nor a party’s officer to attend or produce at a location other than the places specified in Rule 45(b)(3)(B).

Ariz. R. Civ. P. 45

Amended effective January 1, 2017; amended August 31, 2017, effective July 1, 2018.

Comment

2017 Amendment

A.R.S. ยง 12-351 also addresses recoverable costs in connection with the production of documents in response to a subpoena. Additional costs are allowed under Rule 45(d)(1) for a subpoena that compels testimony. The court may specify additional conditions on the production of electronically stored information to guard against undue burden or expense, as allowed by Rule 45(c)(2)(D).