Subpoenas in Colorado – Recent Changes to Rule 45
by Casey Quillen
Recently there have been two important changes regarding the use of civil subpoenas. It is important to understand these changes, not only for how subpoenas should be used to obtain documents, but also for responding to them.
The first significant change to Rule 45 was the case of In Re: Marriage of Wiggins, a Colorado Supreme Court decision handed down on June 18, 2012. That case involved one party serving a subpoena to obtain certain employment documents in a divorce proceeding. Using a procedure that is not unusual, the party served a subpoena and indicated that, when they were received, they would be provided to the other party. Under this procedure, subpoenas would often indicate that records could be delivered before the time designated in the subpoena and the deposition would be vacated. The Supreme Court strongly expressed its opinion that such a practice was wrong and held: “Documents subpoenaed can be produced by the subpoenaed witness only at the time and place specified in the subpoena, unless all parties and the witness agreed to another time or by court order.”
Thus, the Supreme Court held that, in order to protect parties and in order to comply with its vision of how parties should use subpoenas to obtain documents, a formal procedure needed to be followed in order to allow for objections on the basis of privilege, to ensure that all parties received all documents and to ensure that there was full communication among all counsel regarding this discovery.
While this case was making its way through the court system, the rules committee was also reviewing Rule 45, which governs subpoenas. That committee was looking into a relatively modest change to protect health-care providers from inappropriate subpoenas – but this change and the Wiggins case spurred a wholesale revision of the rule.
The new Rule 45 went into effect January 1, 2013. Primary changes include tightening of procedures to obtain privileged records and a requirement that there be more information provided to the subpoenaed person, as well as a requirement that more information be provide to the subpoenaed person. The Rule also more strictly regulates the practice of “records depositions”, the practice of using subpoenas to obtain discovery from third parties.
The new rule also alters the time for service of subpoenas. The longstanding rule is that subpoenas for testimony at trial and hearings may be served any time up to forty-eight hours before the recipient must appear. However, subpoenas only seeking deposition testimony must now be served at least seven days before the deposition. Longer still is the notice period required for subpoenas requiring production of records or tangible things. Subsection (b)(1)(C) requires service be accomplished at least fourteen days before compliance.
The rules are consistent with the desire of the Supreme Court and with the Committee’s intent to give parties and the subpoenaed person ample time to challenge the propriety of subpoenas and the requirement to produce records which might be privileged.
Finally, the new rule gives the Court teeth to ensure subpoenas do not impose undue burden or expense on a subpoenaed person. The Court are being told that they must impose an appropriate sanction against parties or attorneys who fail to comply with the Rule.
One other requirement that should be noted is that, in order to address a problem that arose in Wiggins, the new rule requires that opposing parties must be served with documents obtained “immediately following service of the subpoena,” as opposed to the former rules requirement that they be served “promptly”, which often lead to long delays or the document service on others being ignored.
Where the new rule and Wiggins are at odds is whether documents can simply be produced or whether appearing in person is still necessary. The new rule explicitly allows records custodians to simply produce the records instead of appearing in person, unless the subpoena demands attendance. Presumably, because the new rule was enacted after Wiggins and because it addresses the notice issues that caused the Court heartburn, production of documents without appearance is still acceptable and the onus is on the subpoenaing counsel to ensure all parties receive notice and copies. However, until this is clarified, it may be best for the subpoenaed party to clarify in writing to both parties that documents will be produced and only immediately before the requested date so as not to run afoul of the notice/objection timeframes.
In summary, the new rule will affect the speed and efficiency with which you are able to obtain documents that may be essential to an investigation, but if you are the subpoenaed party there are additional procedural safeguards to ensure opposing counsel is not doing an end-run to avoid discovery safeguards.