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 Subpoena

 District Court of Louisiana

 

 Overview

This Subpoena Guide covers generally applicable statewide rules of practice regarding subpoenas in Louisiana trial courts. Local jurisdictions often have their own rules and procedures developed by judges and clerks that are not reduced to writing, and are subject to change at any time, especially regarding subpoenas to foreign witnesses and subpoenas for use in foreign actions. Therefore, it is always recommended that you consult the clerk's office for the court under whose authority the subpoena will be issued.

Request for Subpoena Filed 10 Days Before Appearance

The subpoenaing party must issue and file with the clerk a request for issuance of a subpoena at least 10 days before the desired appearance date, unless a different date is set by the court. Louisiana Dist. Ct. R. 9.15(a).

Subpoena Served Within Reasonable Period of Time Before Deposition

Subpoenas and subpoenas duces tecum to non-parties must be served within a reasonable period of time before the time specified for the deposition. LSA CCP Art. 1356(B).

Notice of Deposition to Provide Reasonable Notice

A notice of deposition must provide reasonable notice in writing to every other party to the action. If a subpoena duces tecum is to be served on the deponent, the designation of the materials to be produced must be attached to the notice. LSA CCP Art. 1438.

 Subpoena Rules

Forms

It is good practice to check the website for the jurisdiction under whose authority the subpoena will be issued to determine whether there exist discretionary or mandatory subpoena forms.

Issuance

By Clerk or Judge

The clerk or judge of the court wherein the action is pending, at the request of a party, shall issue subpoenas for the attendance of witnesses at hearings or trials.  LSA CCP Art. 1351.

Proof of Service of Notice of Deposition or Inspection Required

Proof of service of a notice to take a deposition or of a notice of inspection constitutes sufficient authorization for issuance by the clerk or judge of subpoenas and subpoenas duces tecum. LSA CCP Art. 1356(A).

Fees

Witnesses in civil cases who reside or who are employed in this state may be subpoenaed and compelled to attend trials or hearings wherever held in this state. LA Rev. Stat. 13:3661(A).

No witness residing and employed outside of the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held shall be subpoenaed to attend court personally unless the party who desired the testimony of the witness has deposited with the clerk of court a sum of money sufficient to cover:

(a)  Reimbursement of the traveling expenses of the witness in traveling to the court and returning, at the rate of twenty cents a mile.  

(b)  The witness' fee at the rate of twenty-five dollars a day.  

(c)  Hotel and meal expenses at the rate of five dollars a day.  

Such a witness shall be paid his expenses and fee immediately by the clerk of court when the witness has answered the subpoena and has appeared for the purpose of testifying. LA Rev. Stat. 13:3661(B).

Any person not a party to a civil action who is subpoenaed and appears for deposition or whose deposition is taken shall receive the same fees and mileage as if subpoenaed for attendance as a witness at a trial or hearing in a civil action pending in the district court.  LA Rev. Stat. 13:3663(A).

The expense of such fees and mileage shall be paid by the party subpoenaing the witness for deposition or causing the deposition to be taken and shall be considered as costs of court.  LA Rev. Stat. 13:3663(B).

The provisions of this Section shall not apply to expert witnesses, whose compensation shall be as otherwise provided by law.  LA Rev. Stat. 13:3663(C).

Prepayment of Fees

The subpoenaing party must prepay all fees and expenses to which the witness is entitled by law. LSA CCP Art. 1353.

Payment of Witness for Appearance at Subsequent Term

Any witness who may have been summoned to attend any of the courts of this state, to testify in a civil case, and shall have attended, claimed and received a certificate therefor, shall not again be compelled to obey any summons for attending said court in the case, at a subsequent term, until he be paid by the party by whom he was summoned; provided, the witness shall have made a demand for payment in writing upon the party who had him summoned, or his attorney, when he resides out of the parish, not less than thirty days before the first day of the subsequent term at which his attendance may be then required.  LA Rev. Stat. 13:3669.

Fees and Mileage

A witness residing or employed in the parish where the court is situated, or a witness who resides or is employed outside of such parish but within twenty-five miles from the courthouse where the trial or hearing is to be held, who attends court in compliance with a subpoena is entitled to receive a fee of eight dollars a day for every day he is in attendance at court, and mileage at the rate of sixteen cents a mile for the distance he is required to travel in going to and returning from the place where the court is held.  The fees and mileage of not more than six witnesses subpoenaed by each party may be taxed as costs of court.  The fees and mileage of witnesses in excess of that number shall be paid by the party who subpoenaed them.  LA Rev. Stat. 13:3671.

Contents and Form

A subpoena shall issue under the seal of the court.  It shall state the name of the court, the title of the action, and shall command the attendance of the witness at a time and place specified, until discharged. LSA CCP Art. 1351.

Service of Subpoena

Subpoenas must be served and a return thereon made in the same manner and with the same effect as a service of and return on a citation.  When a party is summoned as a witness, service of the subpoena may be made by personal service on the witness' attorney of record. LSA CCP Art. 1355(A).

Except as otherwise provided by law, when the sheriff has not made service of a subpoena within five days after its receipt or when a return has been made certifying that the sheriff has been unable to make service, any person over the age of majority, not a party and residing within the state, may make service of the subpoena in the same manner as is required by the sheriff.  Proof of service by a private person shall be made by filing with the clerk of the court by which the subpoena is issued a notarized return showing the title of the action and the name of the court issuing it, the date and manner of service, and the name of the person served, signed by the person who made the service. LSA CCP Art. 1355(B).

Geographical Scope of Subpoena Power

A witness, whether a party or not, who resides or is employed in Louisiana may be subpoenaed to attend a trial or hearing wherever held in Louisiana.  No subpoena shall issue to compel the attendance of such a witness who resides and is employed outside the parish and more than twenty-five miles from the courthouse where the trial or hearing is to be held, unless the provisions of R.S. 13:3661 are complied with. LSA CCP Art. 1352.

Information regarding fees is presented in the subsection entitled "Fees", above.

Information regarding the service of out of state witnesses is presented in the section entitled "Out of State Actions and Witnesses", below.

Failure to Serve Subpoena

If a party notices a deposition and the witness fails to attend the deposition because the noticing party failed to serve a subpoena on the witness, the court may order the party giving notice to pay any party that does attend the deposition reasonable expenses including attorney fees. LSA CCP Art. 1447.

Production of Documents/Subpoena Duces Tecum

In General

A subpoena may order a person to appear and produce at the trial, deposition, or hearing, books, papers, documents, any other tangible things, or electronically stored information, in his possession or under his control, if a reasonably accurate description thereof is given.  A subpoena may specify the form or forms in which electronically stored information is to be produced.  A party or an attorney requesting the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to that subpoena.  The court in which the action is pending in its discretion may vacate or modify the subpoena if it is unreasonable or oppressive.  Except when otherwise required by order of the court, certified copies, extracts, or copies of books, papers, and documents may be produced in obedience to the subpoena duces tecum instead of the originals thereof.  If the party or attorney requesting the subpoena does not specify that the named person shall be ordered to appear, the person may designate another person having knowledge of the contents of the books, papers, documents, other things, or electronically stored information, to appear as his representative. LSA CCP Art. 1354(A).

Objections

A person commanded to respond to a subpoena duces tecum may within fifteen days after service of the subpoena or before the time specified for compliance, if such time is less than fifteen days after service, send to the party or attorney designated in the subpoena written objections, with supporting reasons, to any or all of the requests, including objection to the production of electronically stored information in the form or forms requested.  If objection is so made, the party serving the subpoena may file a motion to compel compliance with the subpoena and may move for sanctions for failure to reasonably comply. LSA CCP Art. 1354(B).

Production

A person responding to a subpoena to produce books, papers, or documents shall produce them as they are kept in the usual course of business or may organize and label them to correspond with the categories in the demand. LSA CCP Art. 1354(C).

If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena may produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably useable. LSA CCP Art. 1354(D).

A person responding to a subpoena need not produce the same electronically stored information in more than one form. LSA CCP Art. 1354(E).

Not Reasonably Accessible

A person responding to a subpoena need not produce books, papers, documents, or electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.  On motion to compel production or to quash, the person from whom production is sought shall 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 production from such sources if the requesting party shows good cause.  The court may specify conditions, including an allocation of the costs, for the production. LSA CCP Art. 1354(F).

Confession of Facts Under Oath

When the person subpoenaed is an adverse party, the party requesting the subpoena duces tecum may accompany his request with a written request under oath as to what facts he believes the books, papers, documents, electronically stored information, or tangible things will prove, and a copy of such statement shall be attached to the subpoena.  If the party subpoenaed fails to comply with the subpoena, the facts set forth in the written statement shall be taken as confessed, and in addition the party subpoenaed shall be subject to the penalties set forth in Article 1357. LSA CCP Art. 1354(G).

Set Forth Article 1354

Subpoenas duces tecum shall reproduce in full the provisions of this Article. LSA CCP Art. 1354(H).

Re-issued Subpoena

When a subpoena that has been personally served is ordered reissued due to continuance or passage of the trial or hearing, the party requesting such reissuance may have the subpoena served in accordance with Article 1355 or may serve the subpoena by mailing a copy of the original subpoena, together with a notice of the new date and time for attendance, to the witness at his dwelling house or usual place of abode, or to a representative of the witness if personal service of the original subpoena was made on such representative.  The mailing shall be by registered or certified mail, return receipt requested.  The date of mailing shall be not less than thirty-five days prior to the date on which the witness is subpoenaed to appear. A copy of the documents mailed to the witness and the signed return receipt shall be filed by the party in the record as proof of service.  If the registered or certified mail is unclaimed, service of the subpoena shall be as otherwise provided by law. LSA CCP Art. 1355.1.

Settlement Notification of Witness

If an action settles, the party issuing a subpoena should make reasonable efforts to notify the witness. Louisiana Dist. Ct. R. 9.15(b).

Failure to Comply with Subpoena

A person who, without reasonable excuse, fails to obey a subpoena may be adjudged in contempt of the court which issued the subpoena.  The court may also order a recalcitrant witness to be attached and brought to court forthwith or on a designated day. LSA CCP Art. 1357.

 Out of State Actions and Witnesses

Action Pending In-State, Witness in Foreign Jurisdiction

Traditional Procedure for Obtaining Service of Subpoena on Out of Jurisdiction Witness

The process for obtaining a subpoena to compel an out of jurisdiction witness requires the subpoenaing party to determine the state trial court jurisdiction in which the witness resides and obtain a subpoena from that court. Usually, the subpoenaing party will need to obtain a commission or letter rogatory from the court where the action is pending, and must present this to the court with jurisdiction over the witness, and that court will then issue the necessary subpoena. In some cases the subpoenaing party must retain local counsel in the jurisdiction where the witness resides. In many jurisdictions there are no statutes or rules that govern the procedure. For this reason, the process is subject to variation between counties or districts within the same state and is subject to change without warning. Therefore, it is always good practice to contact the clerk for the jurisdiction where your witness resides.

Consult SmartRules Subpoena Guide for Jurisdiction Where Witness Resides

If your witness resides in a jurisdiction in the United States, consult the SmartRules Subpoena Guide for the state where the witness resides to learn any statewide rules applicable to serving a subpoena on a resident witness for an out of state action.

If the witness whose deposition is to be taken is found in another state, or in a territory, district, or foreign jurisdiction, the law of the place where the deposition is to be taken shall govern the compulsory process to require the appearance and testimony of witnesses, but otherwise the provisions of this Chapter or of R.S. 13:3823 shall be applicable to such a deposition. LSA CCP Art. 1435.

Action Pending Outside of Louisiana, Witness is Louisiana Resident

Investigation by the SmartRules team revealed the following basic process for obtaining a subpoena to be served on a Louisiana witness for an out of state action:

Send a letter requesting issuance of a subpoena to the clerk of district court in the district where your witness resides. Include with the letter the date, time and place of the proposed deposition and any request for documents or inspection. Include the applicable fee.

The court will assign a docket number to the matter, issue a Louisiana subpoena and submit it to the sheriff for service.

Call the court to request a copy of the subpoena and/or proof of service of the subpoena.

Some district court clerks suggested that local counsel be retained.


Practice Technologies, Inc. 2009 exclusive of the text of Government codes

 

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RELATED DOCUMENTS:
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