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Rule 57.09 – Subpoena for Taking Deposition

May 13, 2021 | Civil Procedure, Missouri

(a) For Attendance of Witnesses; Form; Issuance. Every subpoena for a deposition shall:

(1) Be issued by the officer or person before whom depositions may be taken as designated in Rule 57.05 or Rule 57.06 or by the clerk of the court in which the civil action is pending;
(2) State the name of the court and the style of the civil action;
(3) State the name, address and telephone number of all attorney of record and self-represented parties; and
(4) Command each person to whom it is directed to attend and give testimony at a time and place therein specified.
(b) For Production of Document and Things. In conjunction with a deposition properly noticed under Rule 57.03, a subpoena may also command the person to whom it is directed to produce the books, papers, documents, or tangible things designated therein.

The court may:

(1) Quash or modify the subpoena if it is unreasonable or oppressive, or
(2) Require the party who issued and served the subpoena to advance the reasonable cost of producing the books, papers, documents, or tangible things.
(c) Subpoena to a Non-Party. A subpoena to a non-party pursuant to Rule 57.09 for the production of documents and things shall be served not fewer than 10 days before the time specified for compliance. The party serving a subpoena on a non-party shall provide a copy of the subpoena to every party as if it were a pleading. A party objecting to the subpoena may seek a protective order under Rule 56.01(c).

With the agreement of all parties, the non-party may be excused from appearance at the deposition and may produce the subpoenaed items to the party responsible for issuance and service of the subpoena, who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items. The party responsible for issuance and service of the subpoena is responsible for obtaining the agreement of all parties and advising the non-party in writing of the agreement, with a copy to all attorneys of record and self-represented parties. Absent such an agreement, the subpoenaed items shall only be produced at the deposition.

Upon request by any party, the non-party shall also produce with the subpoenaed items a business records affidavit of the custodian of records.

A non-party commanded to produce and permit inspection and copying may serve the party seeking who issued and served the subpoena with a written objection to inspection and copying of any or all of the designated materials. The objection shall state specific reasons why the subpoena should be quashed or modified.

The objection shall be served on all parties to the action within 10 days after service of the subpoena or before the time specified for compliance, whichever is earlier.

If a timely and specific objection is made, the party who issued and served the subpoena shall not be entitled to inspect or copy the subpoenaed items except pursuant to an order of the court.

Upon notice to the non-party commanded to produce, the party who issued and served the subpoena may move at any time for an order to compel production.

(d) Service. A subpoena may be served by:

(1) The sheriff or a sheriff’s deputy, or
(2) Any other person who is not a party and is not less than 18 years of age.

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees and mileage the witness would have been entitled to receive for attending court pursuant to subpoena.

(e) Authorization to Issue Subpoena. Proof of service of a notice to take a deposition as provided in Rules 57.03 and 57.04 is sufficient to authorize the issuance of a subpoena for taking a deposition.
(f) Contempt. Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending.

Mo. R. Civ. P. 57.09

Adopted March 29, 1974, effective January 1, 1975. Amended September 28, 1993, effective January 1, 1994. Amended June 25, 2001, effective January 1, 2002. Amended June 21, 2005, effective January 1, 2006. Amended June 28, 2011, effective January 1, 2012.

Committee Note – 1974

The sources are prior Rules 57.06(b), 57.19, 57.20 and 57.38 and Rule 45 of the Federal Rules of Civil Procedure.

Compare: Rule 45 of the Federal Rules of Civil Procedure.