- CURRENT AS OF: Sep 2nd 2014
This Procedural Guide covers generally applicable statewide rules of practice in Hawaii trial courts. Local rules and customs as well as chambers and clerk's office preferences may vary from court to court. It is recommended practice to consult the clerk's office for the Court under whose authority the subpoena will be issued to determine local preferences, if any, before proceeding.
Defendant May Take Depositions at Any Time; Plaintiff Must Wait Thirty (30) Days
Depositions may be taken by the defendant at any time after commencement of the action. Plaintiff must wait thirty (30) days after commencement of the action to take depositions, unless the defendant has already served a notice of deposition or otherwise served discovery, or if notice is given pursuant to Rule 30(a)(2) that the person to be examined is about to leave the state or country or otherwise be unavailable for deposition. Haw. R.C.P. 30(a).
Notice - Reasonable Notice
A party desiring to take the deposition of any person upon oral examination shall give reasonable notice in writing to every other party to the action. Haw. R.C.P. 30(b)(1).
Hawaii Rule of Civil Procedure 45 contains no provision regarding the amount of notice that must be afforded a witness subpoenaed to appear at trial or hearing. To avoid delays that might result from objection to a short notice period, it is recommended that the subpoenaing party provide as many days' notice as possible to the witness.
The person on whom a deposition subpoena has been served may file a written objection to any requested production of designated books, papers, documents or tangible things therein within ten (10) days of service or, if the subpoena requires compliance in less than ten (10) days, at any time prior to the time set for compliance. Haw. R.C.P. 45(d)(1).
Subpoenas for appearance at a trial or hearing may only be issued by the clerk under seal of the court where the action is pending. Haw. R.C.P. 45(a). Subpoenas for deposition are issued by the clerk of the court for the circuit where the deposition will be taken. Haw. R.C.P. 45(d)(1).
Subpoena for Attendance of Witness
The clerk will issue a subpoena for the attendance of a witness, signed and sealed but otherwise in blank, to a party requesting it, who must then fill it in before service. Haw. R.C.P. 45(a).
Upon presentation of proof of service of a notice of deposition, the clerk for the circuit court where the deposition is to be taken will issue subpoenas for the persons named or described in the notice of deposition. Haw. R.C.P. 45(d)(1).
Subpoena to Produce Evidence or Permit Inspection of Documents or Things at Trial or Hearing
A subpoena compelling appearance at deposition or trial may also command the production of books, papers, documents and other tangible things. Haw. R.C.P. 45(b).
A deposition subpoena may command the production or permitted inspection and copying of designated books, documents, papers or tangible things within the scope of permissible discovery. Haw. R.C.P. 45(d)(1).
A resident of Hawaii may be required to attend an examination only in the county where he or she lives, is employed or transacts business in person, or at such other convenient place ordered by the court. A nonresident subpoenaed within Hawaii may be required to attend only in the county where he or she is served, or at such other convenient place ordered by the court. Haw. R.C.P. 45(d)(2).
A person producing documents in response to a subpoena should either produce them as kept in the ordinary course of business or organize and label them to correspond with the production request. Haw. R.C.P. 45(e)(1). When information requested by subpoena is withheld on a claim of privilege or subject to protection as trial preparation materials, the claim must be made expressly and supported by a description of the documents, communications or things not produced that is sufficient to allow the opposing party to contest the claim. Haw. R.C.P. 45(e)(2).
Failure to obey a subpoena, or intentional evasion of service of a subpoena, constitutes contempt of the court from which the subpoena was issued. Haw. R.C.P. 45(f).
At Trial or Hearing
With respect to subpoenas commanding production of documents and things in conjunction with appearance at a trial or hearing, the court, upon prompt motion (at or before the time specified in the subpoena for compliance) may: (1) quash or modify the subpoena if it is unreasonable and oppressive, or (2) condition denial of the motion upon the payment by the discovering party of the reasonable cost of producing the books, papers, documents, or tangible things. Haw. R.C.P. 45(b).
The person to whom the subpoena is directed may serve the attorney designated in the subpoena with written objections to inspection or copying of any or all of the designated materials within ten (10) days of service or, if the subpoena requires compliance in less than ten (10) days, at any time prior to the time set for compliance. If objection is made, the party serving the subpoena will not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena then may move upon notice to the deponent for an order at any time before or during the taking of the deposition. Haw. R.C.P. 45(d)(1).
A party or attorney seeking to take a deposition in Hawaii for a case pending out-of-state must petition the Hawaii courts for issuance of the subpoena. On the presentation of a verified petition, the Hawaii Circuit Court will order the issuance of a subpoena to any witness, commanding the witness to appear before the commissioner, officer or person named or designated in the commission, notice or other paper, at a time and place also designated, to testify in the same manner as is provided by the rules of court relating to depositions for use in Hawaii. Haw. Rev. Stat. 624-27.
Failure to Obey
If any witness fails to obey the subpoena, refuses to testify, to produce books or papers pursuant to a subpoena, or to subscribe the witness' deposition, if it is found that contempt has been committed, the court issuing the subpoena may prescribe the punishment in the same manner as in the case of a recalcitrant witness in a Hawaii court and may make any other orders as would be proper if the deposition were for use in Hawaii. Haw. Rev. Stat. 624-27.
Although not specified by any statute or rule, petitions for subpoenas for use in out-of-state proceedings are customarily handled though the use of local counsel.
Although not specifically required by any statute, commissions from the court where the case is pending are typically also required.
Subpoenas are issued signed, but otherwise in blank, by the clerk's office and then filled in by the party or attorney before service. The subpoena should state the name of the court, the title of the action and should command the person subpoenaed to appear and give testimony at a specified time and place. Haw. R.C.P. 45(a).
The fee schedule is not available online at this time. You should contact the court at (808) 539-4900 for current information on subpoena issuance fees.
Although not expressly addressed by statute or rule, it is not customary in Hawaii to file subpoenas with the court.
Personal service of a subpoena is made by delivering a copy of the subpoena to the subpoenaed person and tendering the fees for one day's attendance and mileage as required by law. Personal service may be made: (1) anywhere in the state by a sheriff, a deputy sheriff or any person not a party who is not less than eighteen (18) years old; or (2) in any county by the chief of police or authorized subordinate thereof. Haw. R.C.P. 45(c).
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