Arkansas subpoenas: a sheriff can serve one by telephone

Arkansas Rule 45 keeps several mechanics that most states abandoned, and one of them means a witness can be validly subpoenaed without anyone knocking on a door.

Service by telephone, in the witness's own county

Rule 45(c) sets out the ordinary methods — the sheriff, a deputy, or any non-party aged eighteen or over, delivering a copy — and then adds:

provided, however, that a subpoena for a trial or hearing may be served by telephone by a sheriff or his deputy when the trial or hearing is to be held in the county of the witness' residence.

Three conditions, all required: it must be a trial or hearing subpoena (not a deposition subpoena), served by a sheriff or deputy (not by counsel or a process server), and the proceeding must be in the county where the witness lives.

Inside those limits a phone call is service. That is worth knowing from both directions — a party who needs a local witness at a hearing has a fast route, and a witness who took a call from the sheriff's office has been served whether or not paper followed.

There is a second alternative in the same subsection, available to counsel:

A subpoena for a trial or hearing or for a deposition may also be served by an attorney of record for a party by any form of mail addressed to the person to be served with a return receipt requested and delivery restricted to the addressee or agent of the addressee.

Note the two qualifiers on the mail route: return receipt requested and delivery restricted to the addressee or their agent. Ordinary certified mail that anyone at the address can sign for does not satisfy it.

The witness fee is in the rule, and it is tendered with the subpoena

Most rules leave the amount to a fee statute. Rule 45(e) states it:

The subpoena must be accompanied by a tender of a witness fee calculated at the rate of $30.00 per day for attendance and $0.25 per mile for travel from the witness' residence to the place of the deposition.

Two figures and a starting point. Mileage runs from the witness's residence to the deposition, not from wherever the witness happens to be.

The same subsection fixes the service deadline for a deposition subpoena:

The witness must be properly served at least five (5) business days prior to the date of the deposition, unless the court grants leave for subpoena to be issued within that period.

Five business days, which over a holiday week is materially longer than five days.

Records-only subpoenas: three business days to the other parties

Rule 45(b)(1) treats a subpoena that commands no appearance as its own thing:

If a subpoena does not command an appearance, then it must be served by e-mail, facsimile, or hand delivery on all other parties at least three (3) business days before the subpoena is served on the person to whom it is directed. The party issuing a subpoena that does not command an appearance must promptly provide a copy to all other parties of all material produced in response to the subpoena.

Two obligations that bracket the process.

Before: the other parties see it three business days ahead — and the permitted methods are limited to email, fax or hand delivery. Ordinary mail is not on the list.

After: whatever comes back is shared, promptly, with everyone.

The subpoena "need not be joined with a subpoena to appear for a deposition, hearing, or trial," so a pure document request to a non-party stands on its own.

Rule 45(b)(2) supplies the response: on a motion made promptly and "in any event at or before the time specified in the subpoena for compliance," the court may quash or modify "if it is unreasonable or oppressive" or may "condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents or tangible things."

That second option is the one a records custodian facing an expensive production should ask for.

Ten days to object to a deposition document demand

Where the subpoena commands production at a deposition, Rule 45(e) gives the recipient an objection right with a familiar double deadline:

The person to whom the subpoena is directed may, within ten (10) days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than ten (10) days after service, serve upon the attorney causing the subpoena to be issued written objection to inspection or copying of any or all of the designated materials.

The objection is powerful:

If objection is made, the party causing the subpoena to be issued shall not be entitled to inspect and copy the materials except pursuant to an order of the court before which the deposition may be used.

No production without an order. The issuing party may move "at any time before or during the taking of the deposition" — so the dispute can be resolved in the room if it has to be.

There is also a distance limit: a witness subpoenaed under that subdivision "may be required to attend a deposition at any place within 100 miles of where he resides, or is employed, or transacts his business in person, or at such other convenient place as is fixed by an order of court."

Evading service can produce a warrant

Rule 45(f):

When a witness fails to attend in obedience to a subpoena or intentionally evades the service of a subpoena by concealment or otherwise, the court may issue a warrant for arresting and bringing the witness before the court at a time and place to be fixed in the warrant, to give testimony and answer for contempt.

Two triggers, and the second is unusual: intentional evasion of service is itself a ground, even though no subpoena was ever served. A witness who hides from the process server is exposed to the same warrant as one who was served and stayed away.

Who may issue

Rule 45(a) gives two routes:

A subpoena issued by the clerk shall be under seal, state the name of the court and the title of the action, and command each person to whom it is directed to appear and give testimony at the time and place therein specified. An attorney admitted to practice in this State, as an officer of the court, may also issue and sign a subpoena in any action pending in a court of this State in which the attorney is counsel of record.

The attorney's authority rests expressly on being "an officer of the court," and is limited to actions where the attorney is counsel of record. For everyone else, Rule 45(d) puts the clerk in the loop: at the request of any party the clerk issues a subpoena "signed and sealed, but otherwise in blank, to the party requesting it, who shall fill it in before service."

Out-of-state cases: no case, no fee, until someone objects

Rule 45.1 implements the Uniform Interstate Depositions and Discovery Act, and the mechanics are unusually light-touch. A party submits the foreign subpoena to the circuit clerk in the county where discovery is sought, and:

A request for the issuance of a subpoena under this rule does not constitute an appearance in the courts of this state.

Then:

At the time of issuance of the subpoena, the circuit clerk shall not open a case and shall not collect a fee other than that provided by Ark. Code Ann. section 21-6-402(b)(1). Return or proof of service shall not be made to the circuit clerk but to the attorney who requested the subpoena, and he or she shall retain it and furnish a copy to any party or to the deponent upon request.

No case is opened and no filing fee is charged unless and until there is a dispute. Proof of service stays with the requesting attorney.

The recipient has the same ten-day objection right, and it has the same effect: "If objection is made, the party who requested the subpoena shall not be entitled to proceed with the deposition or discovery except pursuant to an order of the court." Only then does the machinery start — on a motion to enforce, "the circuit clerk shall assign the matter a case number and collect the applicable fee," and any protective-order or quashing application is heard in that case "and no additional fees shall be assessed."

The issued subpoena must "conform to the requirements of Rule 45, including the approved Form of Subpoena and Notice to Person Subject to Subpoenas," and must carry "the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel."

A short checklist

If you are issuing one:

1. Tender $30 a day and $0.25 a mile with a deposition subpoena, measured from the witness's home.
2. Serve a deposition subpoena five business days out.
3. For records only, give the other parties three business days' notice by email, fax or hand delivery.
4. Share everything you receive on a records-only subpoena, promptly.
5. Consider the sheriff's telephone route for a local trial witness.
6. Use restricted-delivery mail if you serve by post; ordinary certified mail is not enough.

If you have been served:

1. Object in writing within ten days, or by the compliance date if that is sooner. The objection blocks inspection until a court orders otherwise.
2. Ask for advancement of production costs as an alternative to quashing.
3. Check the 100-mile limit for a deposition.
4. Do not evade service. Evasion by concealment is itself a ground for a warrant.

Where these rules live

• Ark. R. Civ. P. 45 — Subpoena
• Ark. R. Civ. P. 45.1 — Subpoena for interstate depositions and discovery
• Arkansas depositions
• Arkansas motion to compel discovery
• Arkansas requests for admission
• Responding to an Arkansas complaint

This page explains what the rules say. It isn't legal advice, and the fee statute referred to in Rule 45.1 is not carried on this site.