Minnesota subpoenas: notice to every party first, or issuing it is sanctionable

Two provisions in Minnesota's Rule 45 catch people who are fluent in the federal version. One makes a procedural slip sanctionable in itself. The other means the records you subpoenaed may come with an invoice.

Notice first — and the sanction is for issuing it, not for what you get

Rule 45.01 closes with a sentence that has no federal counterpart:

Any use of a subpoena, other than to compel attendance at a trial, without prior notice to all parties to the action, is improper and may subject the party or attorney issuing it, or on whose behalf it was issued, to sanctions.

Read what it reaches. Not just document subpoenas — any use except compelling trial attendance. A deposition subpoena, a subpoena for inspection of premises, a records subpoena: all of them require prior notice to every party. And the exposure attaches to the party or attorney issuing it, for the act of issuing without notice, independent of whether the material turns out to be discoverable.

Rule 45.02(a) puts a number on it for production subpoenas:

A subpoena commanding production for inspection, copying, testing, or sampling of designated books, papers, documents, or electronically stored information, tangible things, or inspection of premises, must be served on the subject of the subpoena, and notice of the required production must be served in the manner prescribed by Rule 5.02 on each party to the action, at least 7 days before the required production.

Seven days, served under Rule 5.02, on each party. Build the calendar backwards from the production date.

Non-party professionals get paid

Rule 45.03(d) is the other departure, and it is the one that surprises requesting parties:

Subject to the provisions of Rules 26.02 and 26.03, a witness who is not a party to the action or an employee of a party [except a person appointed pursuant to Rule 30.02(f)] and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.

This is not the statutory witness fee. It is reasonable compensation for time and expense, including preparation, for any non-party testifying about their profession, business or trade. A physician, an accountant, a contractor, a records custodian at a business — each is inside it.

And the duty to arrange it falls on the issuer before compliance is due:

The party serving the subpoena shall make arrangements for reasonable compensation as required under Rule 45.03(d) prior to the time of commanded production or the taking of such testimony. If such reasonable arrangements are not made, the person subpoenaed may proceed under Rule 45.03(c) or 45.03(b)(2).

Fail to arrange it and the witness may move to quash or serve a written objection. If the amount is disputed, the issuer "may, if objection has been made, move upon notice to the deponent and all parties for an order directing the amount of such compensation at any time before the taking of the deposition," and any amount paid is subject to Rule 54.04 on costs.

Who issues it

Rule 45.01(b) fixes the court, and (c) the signer. A subpoena for trial, hearing, deposition or production "shall be issued in the name of the court where the action is pending," and it may issue from the court administrator or be signed by an attorney of record as an officer of the court.

Rule 45.01(a) lists what every subpoena must state — the issuing court, the title of the action, the court and file number, and the command itself, whether that is testimony, production, or inspection of premises.

Fourteen days to object

Rule 45.03(b)(1) removes the appearance requirement for a pure document subpoena: a person commanded to produce "need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial."

Then the objection:

Subject to Rule 45.04(b), a person commanded to produce and permit inspection, copying, testing, or sampling may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to producing any or all of the designated materials or inspection of the premises—or to producing electronically stored information in the form or forms requested.

Objecting to the form of electronic production is a separate ground worth using: a demand for native files or a particular format can be met with an objection even where the underlying records are plainly discoverable.

Quashing: four mandatory grounds

Rule 45.03(c)(1) says the court shall quash or modify:

(1) On timely motion, the court on behalf of which a subpoena was issued shall quash or modify the subpoena if it (A) fails to allow reasonable time for compliance; (B) requires a person who is not a party or an officer of a party to travel to a place outside the county where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of Rule 45.03(c)(2)(C), such a person may in order to attend trial be commanded to travel from any such place within the state of Minnesota, or (C) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (D) subjects a person to undue burden.

Limb (B) is Minnesota's geography rule and it is county-based, not measured in miles: a non-party cannot be made to travel outside the county where they live, work, or regularly transact business in person — except to attend trial, for which they can be commanded from anywhere in the state. Service itself is statewide under Rule 45.02(b).

Rule 45.03(a) backs all of this with a duty on the issuer to "avoid imposing undue burden or expense."

What you get, everyone gets

Rule 45.04(a)(5) is a sharing rule with no federal equivalent:

The party issuing a subpoena for production or inspection shall make available to all parties any books, papers, documents or electronically stored information obtained from any person following issuance of a subpoena to that person

There is no such thing as a private records subpoena in Minnesota. Whatever comes back is available to every party — which is worth telling a client before the subpoena goes out.

The same subdivision handles a moved production date: if production happens at a different time, place, manner or scope than commanded, "the party issuing the subpoena must give notice to all parties to the action at least 7 days in advance of the rescheduled production," and any party may attend and participate in a noticed or rescheduled production.

Subpoenas for out-of-state cases

Rule 45.06 carries the interstate-discovery procedure in full, and Rule 45.01(d) the related deposition provision. A party in a case pending elsewhere submits the foreign subpoena to the district court administrator "of the court in the county in which discovery is sought to be conducted in this state," and the administrator "shall, in accordance with that court's procedure, promptly issue a subpoena for service upon the person to which the foreign subpoena is directed." A Minnesota-admitted attorney may issue and sign one instead.

Two consequences worth flagging to out-of-state counsel. Making the request "does not constitute an appearance in a proceeding pursuant to Rule 5.01 of these rules, but does subject the filer to the jurisdiction of the court and to Minnesota law and rules, including the Minnesota Rules of Professional Conduct." And any motion to quash, modify or enforce "must be submitted to the district court in the county in which discovery is to be conducted" — not to the court hearing the case.

Scope for such a deposition is measured by the law of the jurisdiction where the action is pending, but privilege questions "depend on the application of Minnesota's conflict-of-law principles."

If it is ignored

Rule 45.05 is short: failure "by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court on behalf of which the subpoena was issued."

If the problem is a party rather than a non-party, the Minnesota motion to compel discovery is usually the better route.

A short checklist

Issuing one:

1. Notify every party before you issue — anything but a trial subpoena is sanctionable without it.
2. Serve the production notice 7 days ahead under Rule 5.02.
3. Arrange compensation first if the recipient is a professional or business witness.
4. Keep the travel inside the county for a non-party, unless it is trial attendance.
5. Specify the form for electronically stored information, and expect an objection to it.
6. Plan to share — everything you obtain goes to all parties.
7. Re-notice a moved production 7 days out.

Receiving one:

1. Diary 14 days from service, or the compliance date if sooner.
2. Object in writing to the material, the burden, or the form of electronic production; the issuer then needs a court order.
3. Ask to be paid if the subpoena reaches your profession, business or trade — and say so before the compliance date.

Where these rules live

• Minn. R. Civ. P. 26 — General Provisions Governing Discovery
• Minn. R. Civ. P. 30 — Depositions Upon Oral Examination
• Minn. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• Minnesota motion to compel discovery
• Responding to a Minnesota complaint

This page explains what the rules say. It isn't legal advice, and what counts as reasonable compensation or undue burden is developed in case law this site doesn't cover.