1275 W. Washington
Phoenix, AZ 85007
AZ Bar #020418
Proposed Rule 45 contains provisions fundamentally unfair to non-parties subpoenaed to testify without a reasonable time for compliance and should be modified accordingly.
Under Proposed Rule 45, if a non-party receives a subpoena to testify, the burden is on that non-party to file a motion to quash with the court and to show up as designated in the subpoena if the court has not yet made a ruling quashing the subpoena. See Proposed Rule 45(b)(5). Even if the non-party offers a reason that requires the court to quash the subpoena under Proposed Rule 45(e)(2)(A), if the court has not ruled on the motion to quash by the time attendance is required, the non-party may still be held in contempt for failing to appear. See Proposed Rule 45(f). These requirements become problematic for a non-party when the non-party receives the subpoena on the eve of, or even the same day of, a trial, hearing or deposition.
When a non-party receives a subpoena one or two days before attendance is required, the Proposed Rule gives the non-party comfort that, upon motion, the subpoena will ultimately be quashed for failure to allow a reasonable time for compliance. See Proposed Rule 45(e)(2)(A)(i). In the meantime, however, the Proposed Rule places fundamentally unfair expectations on the non-party. First, the non-party now has only one or two days to prepare and file the motion to quash. See Proposed Rule 45(e)(2)(D) (motion “must be filed before the time specified for compliance”). This extremely short timeframe is also impacted by the time it takes the non-party to contact an attorney and the travel time it may take to file the motion when the court is in a different county. Second, the non-party faces the dilemma of still finding a way to attend or risking being found in contempt of court, even though the subpoena failed to allow a reasonable time for compliance, unless either the court rules on the motion by quashing the subpoena within the tiny window of time after the motion is filed, but before the non-party must begin traveling to appear at the time and place designated, or the non-party gets the consent of the party who was responsible for serving the subpoena to not appear. See Proposed Rule 45(b)(5), (f). This unjust result stands in stark contrast to the notice provisions in the other Rules of Civil Procedure.
The Rules of Civil Procedure protect parties—the people actually responsible for the litigation—from having to respond within such short time frames. Parties get 10 days to respond to motions and 5 days to reply. See Rule 7.1. Parties get at least 10 days notice of upcoming depositions. See Rule 30(b)(1). Parties get 40 days to respond to certain discovery requests. See Rules 34(b) & 36(a). Even when a party has obtained a temporary restraining order without notice in a case, that party is entitled to at least 2 days notice before the court can hear a motion to dissolve or modify that order. See Rule 65(d).
Proposed Rule 45 especially allows a non-party to be placed in an inequitable position to act with respect to trial subpoenas. Parties have a duty to disclose all witnesses at least 45 days before the completion of discovery and at least 60 days before trial. See Rules 16(b)(4) & 26.1(a)(4). Parties also know the trial date at least 30 days in advance. See Rule 38.1(g). Non-parties, on the other hand, are often not notified that their names appear on a witness list or that a trial date has been set. A non-party usually learns these facts when it receives a subpoena. Accordingly, a non-party who receives a subpoena on the eve of trial should not be forced to file a motion within a day’s time and hope for extra expeditious review by the court when the party responsible for the subpoena has known about the trial date for over a month and has identified the non-party as a potential witness even before that. In those situations, the burden should be on the requesting party, not on the innocent non-party.
When a subpoena fails to allow a non-party a reasonable time for compliance, the non-party must be permitted to not appear without the possibility of contempt. The non-party should also be given a minimum of 5 days to file a motion objecting to a subpoena, except perhaps for hearings on temporary restraining orders or preliminary injunctions when earlier notice is not possible. Similarly, when a non-party receives a subpoena for attendance less than 5 days before the attendance is required, the procedures for objections to subpoenas duces tecum laid out in Proposed Rule 45(c)(5)(A)(ii) & (B)(i)-(iii) should apply. That way, an innocent non-party is not placed in the position of filing an emergency motion to quash and fearing being held in contempt for not appearing on such short notice when it’s the fault of the subpoenaing party for waiting until the last moment.
These recommended revisions to the Proposed Rule, along with corresponding changes to Proposed Rule 84, could be made as follows:
[Additions to the Proposed Rules appear in brackets]
(e)(2)(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[, except that a subpoena served less than five days before the time specified for compliance may be objected to in accordance with Rule 45(c)(5)(A)(ii) in lieu of filing a motion].
(f) Contempt. The issuing court may hold in contempt a person, who having been served, fails without adequate excuse to obey a subpoena. 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 without allowing a reasonable time for compliance or] to attend or produce at a location other than the places specified in Rule 45(b)(3)(B).
Procedure for Objecting to a Subpoena for Attendance at a Hearing, Trial or Deposition.
See Rule 45(e)(2)(A) of the Arizona Rules of Civil Procedure.
[If you are not a party or a party’s officer and you wish to object to a subpoena commanding your appearance that was served less than five days before the time specified for compliance, instead of filing a motion to quash or modify the subpoena with the court, you may send a written objection to the party or attorney who served the subpoena on the basis that the subpoena does not provide a reasonable time for compliance. You must send your written objection to the party or attorney who served the subpoena before the time specified for compliance. See Rule 45(c)(5)(A)(ii) & (e)(2)(D).]
The court may quash or modify a subpoena: ….
Finally, this concern is not hypothetical. Employees of the Arizona Department of Agriculture have received subpoenas in the past to appear and testify as non-party witnesses in trials or hearings that were to begin in two days or less.