- CURRENT AS OF: Sep 2nd 2014
This Subpoena Guide covers generally applicable statewide rules of practice regarding subpoenas in Montana 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.
A subpoena that fails to provide a reasonable time for compliance is subject to a motion to quash. Mont. R. Civ. Proc. 45(c)(3)(A)(i).
Notice of Deposition
A party desiring to take the deposition of any person upon oral examination must give reasonable notice in writing to every other party to the action. Mont. R. Civ. Proc. 30(b)(1).
Written Objections, Within Fourteen (14) Days of Service
Written objections must be served within fourteen (14) days of service of the subpoena. Mont. R. Civ. Proc. 45(c)(2)(B).
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.
Every subpoena must state the name of the court from which it is issued; and state the title of the action, the name of the court in which it is pending, and its civil action number; and command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing or sampling of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and set forth the text of subparagraphs (c) and (d) of this rule. Mont. R. Civ. Proc. 45(a)(1).
May Command Testimony and Production
A command to produce evidence or to permit inspection, copying, testing or sampling may be joined with a command to appear at trial or hearing or at a deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced. Mont. R. Civ. Proc. 45(a)(1).
Issuance of Subpoena
A subpoena shall issue from the court in which the action is pending. Mont. R. Civ. Proc. 45(a)(2). The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of a court in which the action is pending. Mont. R. Civ. Proc. 45(a)(3).
Subpoena Seeking Health Care Information
A party or an attorney responsible for the issuance and service of a subpoena seeking health care information, as defined by 50-16-504(6), Montana Code Annotated, shall comply with the provisions of 50-16-535 and 50-16-536, Montana Code Annotated. Mont. R. Civ. Proc. 45(a)(4).
Service and Fees
A subpoena may be served by any 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, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law. Mont. R. Civ. Proc. 45(b)(1).
For Attendance at Trial
A subpoena for attendance at a hearing or trial may be served at any place within the state and may require the person subpoenaed to appear at the hearing or trial irrespective of the person's place of residence, place of employment, or where such person regularly transacts business in person; Mont. R. Civ. Proc. 45(b)(2)(A).
For Production of Evidence or Deposition
A subpoena for the production of documentary evidence and/or the taking of a deposition may require a person to attend an examination or produce documentary evidence only at a place within the state; and (i) in the case of residents or entities located within the state, within 100 miles of where that person resides or is employed or transacts business in person, or, if on an entity, within 100 miles of the principal location of that entity, or at such other convenient place as is fixed by order of court; (ii) in the case of non-residents who have been served within the state, within 100 miles of where the non-resident is served, or at any other convenient place as is fixed by order of court. Mont. R. Civ. Proc. 45(b)(2)(B).
For Production of Documents at Trial
Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by rule 5(b). Mont. R. Civ. Proc. 45(b)(1).
Proof of Service
Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service. Mont. R. Civ. Proc. 45(b)(3).
Protection of Subpoenaed Persons
Avoid Undue Burden
A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee. Mont. R. Civ. Proc. 45(c)(1).
Personal Appearance Not Required for Production of Documents
A person commanded to produce and permit inspection, copying, testing, or sampling of designated electronically stored information, books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. Mont. R. Civ. Proc. 45(c)(2)(A).
A person commanded to produce and permit inspection, copying, testing or sampling, or any person affected thereby, may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to producing of any or all of the designated materials or inspection of the premises, or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test, or sample, the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, and to any affected person who has served written objection, move at any time for an order to compel the production, inspection, copying, testing or sampling. Such an order to compel shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection, copying, testing or sampling commanded. Mont. R. Civ. Proc. 45(c)(2)(B).
Motion to Quash or Modify
On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance; or (ii) requires in the case of a deposition or production prior to hearing or trial, a person to travel beyond the 100 mile radius provided in subparagraph (b)(2) of this rule; or (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to undue burden. Mont. R. Civ. Proc. 45(c)(3)(A).
If a subpoena (i) requires disclosure of a trade secret or other confidential research, development, or commercial information; or (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party; or (iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 100 miles to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions. Mont. R. Civ. Proc. 45(c)(3)(B).
Duties in Responding to Subpoena
Production, Electronically Stored Information
A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it, or in a form or forms that are reasonably usable. A person responding to a subpoena need not produce the same electronically stored information in more than one form. A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must 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 discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery. Mont. R. Civ. Proc. 45(d)(1).
Claim of Privilege
When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim. Mont. R. Civ. Proc. 45(d)(2).
Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A) of this rule. Mont. R. Civ. Proc. 45(e).
Failure to Serve Subpoena
If the party giving the notice of the taking of a deposition of a witness fails to serve a subpoena upon the witness and the witness because of such failure does not attend, and if another party attends in person or by attorney because that party expects the deposition of that witness to be taken, the court may order the party giving the notice to pay to such other party the reasonable expenses incurred by that party and that party's attorney in attending, including reasonable attorney's fees. Mont. R. Civ. Proc. 30(g)(2).
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.
Within the state of Montana, depositions shall be taken before a person authorized by the laws of this state to administer oaths; without the state, but within the United States, or within a territory or insular possession subject to the dominion of the United States, depositions shall be taken before a person authorized to administer oaths by the laws of this state, the United States, or of the place where the examination is held; within or without the state of Montana, depositions may also be taken before a person appointed by the court in which the action is pending, which persons so appointed shall have the power to administer oaths and take testimony. Mont. R. Civ. P. 28(a).
Witness in Foreign Country
In a foreign country, depositions may be taken (1) on notice before a person authorized to administer oaths in the place in which the examination is held, either by the law thereof or by the law of the United States, or (2) before a person commissioned by the court, and a person so commissioned shall have the power by virtue of his commission to administer any necessary oath and take testimony, or (3) pursuant to letter rogatory. Mont. R. Civ. Proc. 28(b).
Obtaining Commission or Letter Rogatory
A commission or a letter rogatory shall be issued on application and notice, and on terms that are just and appropriate. It is not requisite to the issuance of a commission or a letter rogatory that the taking of the deposition in any other manner is impracticable or inconvenient; and both a commission and a letter rogatory may be issued in proper cases. A notice or commission may designate the person before whom the deposition is to be taken either by name or descriptive title. A letter rogatory may be addressed "To the Appropriate Authority in [here name the country]." Evidence obtained in response to a letter rogatory need not be excluded merely for the reason that it is not a verbatim transcript or that the testimony was not taken under oath or for any similar departure from the requirements for depositions taken within the United States under these rules. Mont. R. Civ. Proc. 28(b).
Deposition in Sister State or Foreign Country
Whenever the deposition of any person is to be taken in a sister state or a foreign country, or any other jurisdiction, foreign or domestic, for use in this state, pursuant either to notice or stipulation, the clerk or equivalent officer of any court having jurisdiction at the place where the witness is to be served or the deposition taken, upon proof that notice has been duly served for taking of the deposition or that the parties have stipulated to such taking, may issue the necessary subpoenas or equivalent court instruments to require such witness to attend for the taking of the deposition at the time and place in the sister state or foreign country, or any other jurisdiction, foreign or domestic, designated in the notice or stipulation. Mont. R. Civ. Proc. 28(e).
Action Pending Outside Montana Serving Subpoena on Montana Witness
Whenever the deposition of any person is to be taken in this state pursuant to the laws of another state or the United States or of another country for use in proceedings there, the district court of the county where the witness is to be served, upon proof that notice has been duly served, may issue the necessary subpoenas. Mont. R. Civ. Proc. 28(d).
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