BRILLIANT. BOLD. EFFECTIVE.
Subpoenaing Documents and Witnesses for Civil Lawsuits in Colorado Courts
Subpoenas are legal documents typically issued by a court or an attorney in an active lawsuit that command a person or entity not a party to the lawsuit to take certain actions. In particular, subpoenas are most frequently used to compel the production of documents, communications, or other tangible information from third parties not involved in the lawsuit; or command the appearance of witnesses at a trial, hearing, or deposition. For civil actions in Colorado, subpoenas are governed by Colorado Rule of Civil Procedure (“C.R.C.P.”) 45 which enumerates the requirements of the subpoena process. This article discusses those requirements as well as C.R.C.P. 45’s specific application to subpoenaing individuals and documents.
Subpoena Requirements in Colorado Under C.R.C.P. 45
Under C.R.C.P. 45 every subpoena issued in a Colorado civil action, regardless of whether it is for a witness or for documents or tangible objects, must have certain information in it. In particular, every subpoena must:
– State the court from which it issued;
– State the title of the action, the court in which it is pending, and its case number;
– Specify the time and place at which the commanded action is to take place;
– Identify the party and the party’s attorney, if any, who is serving the subpoena;
– Identify the names, addresses, phone number, and email addresses where known, of the attorneys for each of the parties involved in the lawsuit or the party itself if unrepresented;
– State the method for recording testimony if the subpoena commands attendance at a deposition; and
– If production of information is sought, set out the text of sections C.R.C.P. 45(c) and (d) verbatim or as an attachment to the subpoena.
See C.R.C.P. 45(a). Sections (c) and (d) of C.R.C.P. 45 are oriented towards providing the recipient of the subpoena with information regarding her obligations under the subpoena as well as how to contest the subpoena if necessary. In particular, those sections state:
(c) Protecting a person subject to a subpoena.
(1) Avoiding undue burden or expense; sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. the issuing court must enforce this duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney’s fees, on a party or attorney who fails to comply.
(2) Command to produce records or tangible things.
(A) Attendance not required. A person commanded to produce records or tangible things need not attend in person at the place of production unless also commanded to attend for a deposition, hearing, or trial.
(B) For production of privileged records.
(I) If a subpoena commands production of records from a person who provides services subject to one of the privileges established by C.R.S. § 13-90-107 , or from the records custodian for that person, which records pertain to services performed by or at the direction of that person (“privileged records”), such a subpoena must be accompanied by an authorization signed by the privilege holder or holders or by a court order authorizing production of such records.
(II) Prior to the entry of an order for a subpoena to obtain the privileged records, the court shall consider the rights of the privilege holder or holders in such privileged records, including an appropriate means of notice to the privilege holder or holders or whether any objection to production may be resolved by redaction.
(III) If a subpoena for privileged records does not include a signed authorization or court order permitting the privileged records to be produced by means of subpoena, the subpoenaed person shall not appear to testify and shall not disclose any of the privileged records to the party who issued the subpoena.
(C) Objections. Any party or the person subpoenaed to produce records or tangible things may submit to the party issuing the subpoena a written objection to inspecting, copying, testing or sampling any or all of the materials. The objection must be submitted before the earlier of the time specified for compliance or 14 days after the subpoena is served. If objection is made, the party issuing the subpoena shall promptly serve a copy of the objection on all other parties. If an objection is made, the party issuing the subpoena is not entitled to inspect, copy, test or sample the materials except pursuant to an order of the court from which the subpoena was issued. If an objection is made, at any time on notice to the subpoenaed person and the other parties, the party issuing the subpoena may move the issuing court for an order compelling production.
(3) Quashing or modifying a subpoena.
(A) When required. On motion made promptly and in any event at or before the time specified in the subpoena for compliance, the issuing court must quash or modify a subpoena that:
(I) Fails to allow a reasonable time to comply;
(II) Requires a person who is neither a party nor a party’s officer to attend a deposition in any county other than where the person resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of court;
(III) Requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(IV) Subjects a person to undue burden.
(B) When permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion made promptly and in any event at or before the time specified in the subpoena for compliance, quash or modify the subpoena if it requires:
(I) Disclosing a trade secret or other confidential research, development, or commercial information; or
(II) Disclosing an unretained expert’s opinion or information that does not describe specific matters in dispute and results from the expert’s study that was not requested by a party.
(C) Specifying conditions as an alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order attendance or production under specified conditions if the issuing party:
(I) Shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and
(II) Ensures that the subpoenaed person will be reasonably compensated.
(d) Duties in responding to subpoena.
(1) Producing records or tangible things.
(A) Unless agreed in writing by all parties, the privilege holder or holders and the person subpoenaed, production shall not be made until at least 14 days after service of the subpoena, except that, in the case of an expedited hearing pursuant to these rules or any statute, in the absence of such agreement, production shall be made only at the place, date and time for compliance set forth in the subpoena; and
(B) If not objected to, a person responding to a subpoena to produce records or tangible things must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand and must permit inspection, copying, testing, or sampling of the materials.
(2) Claiming privilege or protection.
(A) Information withheld. Unless the subpoena is subject to subsection (c)(2)(B) of this rule relating to production of privileged records, a person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:
(I) Make the claim expressly; and
(II) Describe the nature of the withheld records or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.
(B) Information produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information to the court under seal for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.
Additionally, issued subpoenas must be signed be either the clerk of the court or an attorney who has entered an appearance in the case in order to be effective. Importantly, subpoenas can only be used on individuals or entities that are not a party to the lawsuit. That
Specific Uses of a Subpoena in Colorado Courts
Subpoenas can be used to seek a variety of information including testimony from individuals or documentary or other physical evidence that may be relevant to a lawsuit. In particular, subpoenas can be used to command the appearance of a witness at a deposition, hearing, or trial; or command the production of documents or other tangible items. Different requirements apply depending on what the subpoena is specifically being used for. See C.R.C.P. 45(a)(B).
For subpoenas commanding the appearance of a witness at a deposition, hearing, or trial, the subpoena must be served on the witness a minimum amount of time before the witness’s time to testify. For a trial or court hearing, the subpoena must be served at least 48 hours before the time for appearance. In contrast, subpoenas requiring testimony at a deposition must be served at least 7 days before the date of the deposition. Importantly, when subpoenaing a witness, compensation for mileage must also be provided in accordance with the statutory rate set out in Colorado Revised Statute § 13-33-103. See C.R.C.P. 45(b)(1), (3).
Similarly, subpoenas requiring the production of documents or tangible objects must be served at least 14 days before compliance is required. Importantly, if documents or tangible objects are sought, the subpoena must be served on the person or entity that has possession of them. For example, if business records are sought such as bank statements or communications, the subpoena should be served on the entity that produces or maintains possession of those documents. Additionally, if business records are subpoenaed that qualify as hearsay, the requesting party should consider obtaining an affidavit from the business entity to establish admissibility under the business records exception provided in Colorado Rule of Evidence 902(11). See C.R.C.P. 45(b)(1)(C).
Regardless of whether a subpoena seeks to compel the appearance of a witness or the production of documents, the subpoena must be served by delivering a copy to the named person or entity in conformance with traditional rules of personal service or as otherwise ordered by the presiding court as long as it is consistent with due process. Service must be made within the state of Colorado in order for the subpoena to effective; however, a person or entity is free to waive service if he consents. Further, once served, a copy of the subpoena has to be served on all other parties in the lawsuit but does not have to be filed with the court. See C.R.C.P 45(b).
Further, for subpoenas compelling the appearance of a witness at a deposition, C.R.C.P. 45 imposes distance restrictions on where that witness can be compelled to appear. For residents of Colorado, the place of deposition muse be in the county where the witness resides or works. For non-residents of Colorado, the place of deposition must be within 40 miles from the place of service of the subpoena or in the county where the nonresident resides or works. Accordingly, parties cannot simply subpoena a witness for a deposition to wherever is most convenient to the party. Instead, C.R.C.P. 45 requires that the party go to the witness in order to limit the inconvenience to the witness.
Lastly, and importantly, subpoenaed witnesses must be served in the state of Colorado since Colorado courts have no jurisdiction in other states. If a Colorado court’s subpoena is served outside the state of Colorado it will be ineffective. Accordingly, if an individual that needs to be subpoenaed resides outside of Colorado, additional measures will have to be taken, such as enlisting the help of the state courts where the witness resides. See Minnesota ex rel. Minnesota
Objecting to a Subpoena Issued from a Colorado Court
Where a subpoena has been served, the served party should closely inspect the subpoena to determine whether it should be objected to. That is, simply being served a subpoena does not automatically mean it is enforceable. Objecting to the subpoena or moving to quash it may be appropriate under certain circumstances.
More specifically, a party or attorney responsible for issuing and serving a subpoena has a general responsibility to take steps to avoid imposing an undue burden or expense on the person subject to the subpoena. Accordingly, subpoenas should be reasonable in the scope and amount of information they request. To the extent a party or attorney does not take steps to comply with this requirement, the presiding court has the ability to impose sanctions including, but not limited to, lost earnings and reasonable attorney’s fees incurred by the person objecting to the subpoena. See C.R.C.P. 45 (c)(1).
Additionally, aside from undue burden or expense requirement, subpoenas may also be objected to on the basis of the substantive information requested. That is, a subpoena may be objected to if it requests privileged information and that privilege had not otherwise been waived; if it requests information regarding a trade secret or other confidential information; or if it requests information from an unretained expert who has offered an opinion to one of the parties in the case. See C.R.C.P. 45(c)(3).
Altogether, a subpoena may be quashed or modified for a variety of reasons. A comprehensive list of those reasons as enumerated in C.R.C.P. 45 includes:
– The subpoena failed to allow a reasonable time to comply;
– The subpoena requires a witness to attend a deposition in a place that does not comply with the location requirements of the rule;
– The subpoena requires disclosure of privileged or other protect matter where no waiver of the privilege applies;
– The subpoena subjects a person to undue burden;
– The subpoena requires disclosure of a trade secret or other confidential research, development, or commercial information; or
– The subpoena requests the disclosure of an unretained expert’s opinion or information that results from the expert’s study that was not requested by a party.
See C.R.C.P. 45(c)(3). Notably, objections to a subpoena can be made by the subpoenaed person or by parties in the lawsuit. If an objection is made, it must be done before the time for compliance specified in the subpoena or 14 days after the subpoena is served, whichever is earlier. If an objection is made, a court order must be obtained in order to enforce the subpoena. See C.R.C.P. 45(c)(2)(C).
In issuing a subpoena compelling the production of documents or other tangible objects, the issuing party must have good cause for issuing the subpoena. That is, a party may not issue a subpoena to compel documents that are not relevant to the issues in a proceeding. See Lee v. Missouri P. R. R., 152 Colo. 179 (Colo. 1963).
Additionally, a subpoena may not compel the inspection of premises. Instead, subpoenas are limited to the production of tangible items such as documents, books, or other tangible items; and to compel the appearance of a witness. Subpoenas are not meant to compel the production of real property or fixtures on the property. See Thompson v. Thornton, 198 P.3d 1281, 1284 (Colo. App. 2008).
Lastly, where a party seeks to compel documents or other tangible objects in advance of the time specified in the subpoena, the party must confer with and obtain consent from all other parties in the case. If any of the other parties object, the subpoenaing party must wait for the time and place specified in the subpoena to receive the requested items in order to give time for any objections to be made to the presiding court. In re Wiggins, 279 P.3d 1 (Colo. 2012).
© 2017 J.D. Porter, LLC. Author: Jordan Porter. Denver, Colorado.