Arizona subpoenas: confer before any motion, and pay for the privilege log you asked for

Arizona's Rule 45 is unusually protective of the person on the receiving end, and it puts two gates in front of the party who issued the subpoena. You cannot bring a motion about a subpoena without conferring first and saying so on a certificate. And if you demand a privilege log, you pay for it.

Every subpoena motion needs a consultation certificate

Rule 45(e)(1) applies to all three of the motions this rule generates:

Before bringing any motion to compel, motion to quash, or motion for protective order regarding compliance with a subpoena, the movant must attempt to resolve the dispute by good faith consultation with the opposing party or person. Any motion regarding compliance with a subpoena must be accompanied by a good faith consultation certificate under Rule 7.1 (h).

Note who this binds: the movant, whichever side that is. A non-party moving to quash owes the same consultation as the party moving to compel.

One further limit in the same paragraph: "Absent agreement of the subpoenaed person, the expedited procedures in Rule 26 (d) do not apply to motions under this rule." The short-form discovery-dispute process is unavailable against an unwilling non-party, so budget for a full motion.

A privilege log is something you buy

Rule 45(d)(3)(A) requires a person withholding material on privilege or work-product grounds to comply promptly with Rule 26(b)(6)(A) — the privilege-log provision — unless a timely objection is made. Then:

On any such objection, unless the court orders otherwise for good cause, a subpoenaing party requesting a privilege log must pay the subpoenaed person's reasonable expenses in preparing the log.

No other state in this set makes the requesting party fund the log. It changes the calculus on a broad subpoena to a well-resourced non-party: asking for an itemized log of everything withheld is a decision with a price attached.

Where a non-party can be made to travel

Rule 45(b)(2) sets the geography, and Arizona uses a county rule and a mileage rule together:

A subpoena commanding a person who is neither a party nor a party's officer to attend a deposition or hearing may not require the subpoenaed person to travel to a place other than: (i) the county where the person resides or transacts business in person; (ii) the county where the person is served with a subpoena, or within 40 miles from the place of service; or (iii) such other convenient place fixed by a court order.

Deposition and hearing only. For trial, the reach is statewide: "Subject to Rule 45(e)(2)(B)(iii), a subpoena commanding attendance at a trial may require the subpoenaed person to travel from anywhere within the state." Service itself is statewide too — "A subpoena may be served anywhere within the state."

Which court issues it

Arizona routes the subpoena by what it commands, and by county:

The clerk "must issue a signed but otherwise blank subpoena to a party requesting it," which the party completes before service. And Arizona has a route no other state offers:

The State Bar of Arizona may also issue signed subpoenas on behalf of the clerk through an online subpoena issuance service approved by the Supreme Court.

Serving it, and paying for it

Rule 45(c) requires delivering a copy to the named person and, where attendance is commanded, tendering one day's attendance fee and mileage. Two exceptions:

Fees and mileage need not be tendered when the subpoena commands attendance of a party at a trial or hearing or is issued on behalf of the State of Arizona or any of its officers or agencies.

And every other party has to be told: "A copy of every subpoena and any proof of service must be served on every other party in accordance with Rule 5 (c)."

Proof of service is not routinely filed — "Proof of service may not be filed except as allowed by Rule 5.1 (c)(2)(A)" — and when it is filed, it goes to the clerk for the county where the action is pending with a server's certificate stating the date, manner and persons served.

Fourteen days to object — and what an objection does not excuse

Rule 45(d)(6)(A) sets the form and the clock:

The objection must state the basis for the objection, and must include the name, address, and telephone number of the person, or the person's attorney, serving the objection.

The objection must be served on the party or attorney serving the subpoena before the time specified for compliance or within 14 days after the subpoena is served, whichever is earlier.

The contact details are mandatory, which is a small drafting point that invalidates a bare "we object."

Then the trap in combined subpoenas:

A person objecting to the part of a combined subpoena that commands attendance at a deposition, hearing, or trial must attend and testify at the date, time, and place specified in the subpoena, unless excused as provided in Rule 45(b)(5).

Objecting to the documents half of a combined subpoena does not excuse you from showing up. Appear, and object to the production.

For the production half, the objection does suspend the obligation: a person objecting "need not comply with those parts of the subpoena that are the subject of the objection, unless ordered to do so by the issuing court," and may also move for a protective order or to modify or quash.

What the issuer does next

Rule 45(d)(6)(B)(ii) sends the issuer to the discovery rules: "The party serving the subpoena may move under Rule 37 (a) to compel compliance with the subpoena," and the motion "must comply with Rule 37 (a)(1), and must be served on the subpoenaed person and all other parties under Rule 5 (c)." The Arizona motion to compel discovery covers what Rule 37 requires.

Even a successful motion carries a protection for the non-party: "Any order to compel entered by the court must protect a person who is neither a party nor a party's officer from undue burden or expense resulting from compliance."

Producing electronic information

Rule 45(d) tracks the modern federal scheme with one Arizona flourish. Documents are produced "as they are kept in the usual course of business, or organize[d] and label[ed] to correspond with the categories in the demand." If the subpoena does not specify a form for electronically stored information:

If a subpoena does not specify a form for producing electronically stored information, the person responding may produce it in native form or in another reasonably usable form that will enable the receiving party to have the same ability to access, search, and display the information as the responding person.

Native form is the named default, and the benchmark for any alternative is what the responding person can do with the data — the recipient is entitled to the same ability to access, search and display it.

Inaccessible sources are excused, expressly including those made burdensome by good-faith records management: the responder "need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or expense, including sources that are unduly burdensome or expensive to access because of the past good-faith operation of an electronic information system or good-faith and consistent application of a document retention policy."

Everyone gets a copy

Like Minnesota, Arizona forbids the private records subpoena: "Unless otherwise stipulated by the parties or ordered by the court, a party receiving documents, electronically stored information, or tangible things in response to a subpoena must promptly make such materials available to all other parties."

A short checklist

Issuing one:

1. Pick the right issuing county — hearing county, action county, or production county, depending on what you command.
2. Serve a copy on every party under Rule 5(c), with proof of service.
3. Tender fees and mileage unless the target is a party at trial or you act for the State.
4. Keep non-party travel inside the county or 40 miles for a deposition or hearing.
5. Think before demanding a privilege log — you will be paying for it.
6. Confer and file the Rule 7.1(h) certificate before any motion.
7. Share what you receive with all parties.

Receiving one:

1. Diary 14 days from service, or the compliance date if earlier.
2. Put your name, address and telephone number in the objection; the rule requires them.
3. Appear anyway if it is a combined subpoena — objecting to the documents does not excuse attendance.

Where these rules live

• Ariz. R. Civ. P. 26 — General Provisions Governing Discovery
• Ariz. R. Civ. P. 30 — Depositions by Oral Examination
• Ariz. R. Civ. P. 37 — Failure to Cooperate in Discovery; Sanctions
• Ariz. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• Arizona motion to compel discovery

This page explains what the rules say. It isn't legal advice, and the State Bar's online issuance service operates under procedures this page does not describe.