Idaho subpoenas: the other side sees it seven days before the records custodian does

Idaho front-loads the fight. Before a records subpoena ever reaches the bank, the hospital or the employer, the other side has had it for a week — and the party who issued it is on the hook for what production costs.

Seven days' head start, and you pay

Rule 45(c)(2) governs the ordinary records subpoena to a non-party:

A subpoena to command a person who is not a party to produce or to permit inspection and copying of documents, electronically stored information, or tangible things, or to permit inspection of premises may be served at any time after all parties have either appeared or have been defaulted, unless otherwise ordered. The party serving the subpoena must: (A) serve a copy of the subpoena on the opposing party at least 7 days prior to service on the third party, unless otherwise specified by the court; (B) pay the reasonable cost of producing or copying the documents, electronically stored information or tangible things, and (C) upon request of any other party and the payment of reasonable costs, provide copies of all documents obtained in response to the subpoena.

Four things to plan around.

You cannot serve it until everyone has appeared or been defaulted. That is a gate on early records discovery that the federal rule does not have.

Seven days, in that order. The opposing party gets the copy first. Serving the custodian on Monday and copying opposing counsel on Tuesday is backwards, and it hands the other side a clean objection.

You pay the production cost. Not on request, not if the custodian complains — the rule makes it the issuing party's obligation.

And you share what arrives, on request and on payment of reasonable costs.

A party gets thirty days

Where the subpoena is aimed at a party rather than a stranger to the case, Rule 45(c)(1) redirects the whole exercise:

If the subpoena is for a party to attend a deposition, the scope and procedure must comply with Rule 34 , and the party must be allowed at least 30 days to comply.

So a document demand on a party is a Rule 34 request wearing a subpoena's clothes, and it carries Rule 34's thirty days. A subpoena cannot be used to shorten a party's production time.

The form is prescribed

Rule 45(a)(1) begins with a requirement most states leave to local practice:

Every subpoena must be substantially in the form found in Appendix B

Along with the issuing court, the title of the action and the case number. A subpoena drafted from a federal template will not be substantially in Idaho's form.

Issuance is conventional: a subpoena "must issue from the court where the action is pending," the clerk issues one "signed and under the seal of the court, but otherwise blank" for the party to complete, and "[a]n attorney licensed in Idaho as officer of the court may also issue and sign a subpoena."

Fees, and the party-service shortcut

Rule 45(b) has three provisions on money and service that repay reading together.

(A) If the subpoena requires the person's attendance, the fees for 1 day's attendance and the mileage allowed by law must be tendered, if requested, at the time the subpoena is served.

"If requested" — Idaho does not require unprompted tender at service, unlike states where an untendered fee voids the subpoena.

(B) Service of a subpoena upon a party to a legal action or proceeding can be made by service on the attorney of record for that party in such legal action or proceeding as provided in Rule 5 (b) for attendance at a hearing or trial with or without the production of documents or other objects.

A represented party can be subpoenaed through counsel — no process server needed — though note the limit: this route is for attendance at a hearing or trial, with or without documents. And no advance money: "No prepayment tender of fees and mileage is necessary to that party, but the court may, upon a hearing held at any time after service on that party's attorney, determine the reasonable amount of such fees and mileage."

(C) Fees and mileage need not be tendered when the subpoena is issued by the Attorney General or any prosecuting attorney or on behalf of the State or any of its officers or agencies.

Proof of service is formal: "When service is by an officer it must be returned with the officer's certificate of service, and when served by any other person, it must be returned with the person's affidavit stating the date and manner of service."

Where a witness can be made to go

Rule 45(f) uses a residence test rather than a mileage radius:

A resident of the state may be required to attend an examination only in the county where the resident resides or is employed or transacts business in person.

A nonresident of the state may be required to attend in any county of the state where the nonresident is served with a subpoena.

For hearings and trials the reach is wider — subpoenas "may be served at any place within the state" — and witness fees and expenses are set by Rule 54(d)(1).

The same subdivision handles out-of-state cases: the clerk of the district court "for the county in which an action is pending or the county in which a deposition is being taken to be used in an action pending in another state or country" may issue the subpoena.

Objecting, and the prepayment order

A pure production subpoena needs no appearance: a person commanded to produce or permit inspection "need not appear in person at the place of production or inspection unless commanded to appear for a deposition, hearing or trial."

Rule 45(d) then gives the court two tools rather than one:

The court, upon timely motion, may: (1) quash or modify the subpoena if it is unreasonable, oppressive, fails to allow time for compliance, requires disclosure of privileged or other protected matter and no exception or waiver applies, or subjects a person to undue burden; or (2) condition compliance with the subpoena upon the prepayment of the reasonable cost of producing the books, papers, documents, electronically stored information or tangible things.

Limb (2) is the practical one for a records custodian facing a large request. The answer to a burdensome subpoena in Idaho is often not "quash it" but "make them pay up front" — and given that Rule 45(c)(2)(B) already puts the cost on the issuing party, an order to prepay is a modest step for the court to take.

Note also that Idaho's grounds are permissive — the court "may" quash — where several states make it mandatory once a ground is shown.

Contempt, plus whatever else applies

Rule 45(h) is broader than the usual formula:

Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of the court from which the subpoena issued, in addition to the penalties provided by law.

"In addition to the penalties provided by law" preserves whatever statutory consequence exists alongside contempt.

Where the problem is a party rather than a non-party, the Idaho motion to compel discovery is the better route.

A short checklist

Issuing one:

1. Wait until everyone has appeared or been defaulted.
2. Use the Appendix B form, not a federal template.
3. Serve opposing counsel 7 days before the third party — in that order.
4. Budget for the production cost. It is yours by rule.
5. Give a party 30 days and comply with Rule 34 if the target is a party.
6. Serve a represented party through counsel under Rule 5(b) if that is simpler.
7. Expect to share what you receive on request.

Receiving one:

1. Ask for your fees and mileage — Idaho tenders them on request, so request them.
2. Do not appear for a pure production subpoena; produce or object.
3. Ask the court to condition compliance on prepayment where the request is large, rather than fighting only about whether to quash.

Where these rules live

• I.R.C.P. 26 — General Provisions Governing Discovery
• I.R.C.P. 30 — Depositions by Oral Examination
• I.R.C.P. 34 — Producing Documents and Electronically Stored Information
• I.R.C.P. 45 — Subpoenas
• I.R.C.P. 54 — Judgments and Costs
• Subpoenaing records in another state
• Idaho motion to compel discovery

This page explains what the rules say. It isn't legal advice, and the subpoena form in Appendix B is a court form this site doesn't reproduce.