Colorado subpoenas: 48 hours, 7 days or 14 days — and never against a party

Two rules govern almost every Colorado subpoena question. A subpoena is for non-parties — using one against an opponent takes a court order. And how far ahead you must serve it depends entirely on what you are asking for.

You cannot subpoena a party

C.R.C.P. 45(a)(1)(D) is blunt:

A subpoena issued under this Rule may not be utilized to obtain discovery from named parties to the action unless the court orders otherwise for good cause.

Discovery from a party goes through Rule 34 and the rest of the discovery rules, not through a subpoena. The related provision (a)(1)(C) closes the other half of the loophole:

A deposition subpoena may require the production of records or tangible things which are within the scope of discovery permitted by C.R.C.P. 26 . A subpoena must not be used to avoid the limits on discovery imposed by C.R.C.P. 16.1 , 16.2 or 26 or by the Case Management Order applicable to that case.

Note how far that reaches: not only the discovery rules but the case management order in your own case. A subpoena cannot be used to work around a limit the judge set, and it cannot be aimed at an opponent. If the material is in a party's hands, the Colorado motion to compel discovery is the route.

Three clocks

C.R.C.P. 45(c)(1) fixes the service lead time by what the subpoena commands, "[u]nless otherwise ordered by the court for good cause":

(A) Subpoena for Trial or Hearing Testimony. Service of a subpoena only for testimony in a trial or hearing shall be made no later than 48 hours before the time for appearance set out in the subpoena. (B) Subpoena for Deposition Testimony. Service of a subpoena only for testimony in a deposition shall be made not later than 7 days before compliance is required. (C) Subpoena for Production of Documents. Service of any subpoena commanding a person to produce records or tangible things in that person's possession, custody, or control shall be made not later than 14 days before compliance is required.

Note the word "only" in the first two. A subpoena that commands testimony and production is a production subpoena for this purpose, so the fourteen days applies. Combining a records demand with a deposition notice quietly triples your lead time.

For an expedited proceeding the rule bends rather than breaks: "In the case of an expedited hearing pursuant to these rules or any statute, service shall be made as soon as possible before compliance is required."

Serving it

C.R.C.P. 45(c)(2) is flexible about method: "Serving a subpoena requires delivering a copy to the named person or service as otherwise ordered by the court consistent with due process," and "[s]ervice is also valid if the person named in the subpoena has signed a written acknowledgement or waiver of service."

Service "may be made anywhere within the state of Colorado," with proof of service made as provided in C.R.C.P. 4(h). One welcome administrative note: "Original subpoenas and returns of service of such subpoenas need not be filed with the court."

Mileage, not attendance fees

C.R.C.P. 45(c)(3) tenders less than most states do:

If the subpoena requires a person's attendance, the payment for 1 day's mileage allowed by law must be tendered to the subpoenaed person at the time of service of the subpoena or within a reasonable time after service of the subpoena, but in any event prior to the appearance date.

Mileage for one day — not a witness attendance fee — and the timing is forgiving: at service or within a reasonable time after it, subject to a hard backstop of the appearance date. The usual government exception applies: "Payment for mileage need not be tendered when the subpoena issues on behalf of the state of Colorado or any of its officers or agencies."

Telling the other parties

C.R.C.P. 45(c)(4)(A) requires a copy to everyone, with one carve-out:

Immediately following service of a subpoena, the party or attorney who issues the subpoena, shall serve a copy of the subpoena on all parties pursuant to C.R.C.P. 5 ; provided that such service is not required for a subpoena issued pursuant to C.R.C.P. 69 .

"Immediately following service" — Colorado, unlike Idaho, copies the parties after the recipient is served rather than before. The exception is for post-judgment subpoenas under C.R.C.P. 69, where a judgment creditor is not required to alert anyone.

And changes have to be circulated too: "The party or attorney who issues the subpoena must give the other parties reasonable notice of any written modification of the subpoena or any new date and time for the deposition, or production."

Who issues it

The clerk "of the court in which the case is docketed must issue a subpoena, signed but otherwise in blank, to a party who requests it," and "[a]n attorney who has entered an appearance in the case also may issue, complete and sign a subpoena as an officer of the court." Note the qualifier — an entered appearance, not merely a license.

C.R.C.P. 45(a)(1)(B) allows either structure: a command to produce "may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be contained in a separate subpoena that does not command attendance."

A short checklist

Issuing one:

1. Check who the target is. A named party needs a court order for good cause.
2. Do not use it to exceed the discovery limits — Rule 45(a)(1)(C) forbids it in terms.
3. Count back 48 hours, 7 days or 14 days from what you are asking for.
4. Treat any combined subpoena as a 14-day subpoena.
5. Tender one day's mileage at service or soon after, and always before the appearance date.
6. Copy every party immediately after service — except on a Rule 69 post-judgment subpoena.
7. Re-notice any change of date, time or terms.

Receiving one:

1. Check the lead time first. A production subpoena served eight days out is short.
2. Ask whether you are really a non-party — a subpoena aimed at a party is improper without an order.
3. Ask for mileage if attendance is commanded and none was tendered.

Where these rules live

• C.R.C.P. 26 — General Provisions Governing Discovery
• C.R.C.P. 30 — Depositions Upon Oral Examination
• C.R.C.P. 34 — Production of Documents and Things
• C.R.C.P. 45 — Subpoena
• C.R.C.P. 69 — Execution and Proceedings Subsequent to Judgment
• Subpoenaing records in another state
• Colorado motion to compel discovery

This page explains what the rules say. It isn't legal advice, and the mileage rate allowed by law is set outside these rules.