Missouri subpoenas: a custodian cannot just mail the file to the party that asked

The everyday practice in most states is that a records custodian mails the file to whoever subpoenaed it and nobody else sees the delivery. Missouri forecloses that unless everyone agrees, and puts the job of getting that agreement on the party that issued the subpoena.

Production happens in front of everybody, unless all parties agree otherwise

Rule 58.02(d):

With the agreement of all parties, the non-party may be excused from appearance at the location specified for document production and may produce the subpoenaed items to the party responsible for issuance and service of the subpoena, who shall then offer to all other parties the opportunity to inspect or copy the subpoenaed items. The party responsible for issuance and service of the subpoena is responsible for obtaining the agreement of all parties and advising the non-party in writing of the agreement, with a copy to all attorneys of record and self-represented parties. Absent such an agreement, the subpoenaed items shall only be produced at the place, date and time specified by the subpoena for all parties to inspect or copy.

Three obligations, and the default at the end is the one to plan around.

The agreement must come from all parties, not just the ones who care.

Obtaining it is the issuing party's job, as is telling the non-party in writing, with copies to everyone.

And absent agreement, the documents are produced at the specified place and time "for all parties to inspect or copy." Not sent to one side.

Rule 57.09(c) says the same thing for a subpoena issued in conjunction with a deposition, with the default there being that "the subpoenaed items shall only be produced at the deposition."

For a custodian this resolves a question that otherwise causes trouble: unless the letter excusing appearance has arrived, mailing the records to the requesting attorney is not compliance with the subpoena as written.

Either way, one more thing can be asked for: "Upon request by any party, the non-party shall also produce with the subpoenaed items a business records affidavit of the custodian of records."

Ten days, and a copy to every party as if it were a pleading

Rule 58.02(b) and (c):

(b) Time. A subpoena to a non-party shall be served not fewer than 10 days before the time specified for compliance. (c) Notice to Parties. The party serving a subpoena on a non-party pursuant to Rule 58.02(a) shall provide a copy of the subpoena to every party as if it were a pleading. A party objecting to the subpoena may seek a protective order under Rule 56.01(c).

Ten days is the floor. The phrase "as if it were a pleading" is doing the work in (c) — it imports the ordinary service and certificate practice rather than leaving distribution to courtesy.

A party who objects does not have a bespoke objection route here; the answer is a protective order under the general discovery rule.

The subpoena has to carry everyone's contact details

Both rules require the same unusual content. Rule 58.02(a)(3):

(A) Be issued by the clerk of the court in which the civil action is pending; (B) State the name of the court and the style of the civil action; (C) State the name, address, and telephone number of all attorneys of record and self-represented parties.

All attorneys of record and self-represented parties — names, addresses and telephone numbers, on the face of the subpoena.

That is a deliberate design choice, and it follows from the production rule above. A non-party who needs to raise something has the contact details for everyone in the case, not only for the lawyer who sent the subpoena. Rule 57.09(a)(3) imposes the identical requirement on deposition subpoenas.

Ten days to object, with specific reasons

Rule 58.02(e)(2) gives the non-party a written objection route, and it asks for more than a list of grounds:

A non-party commanded to produce and permit inspection and copying may serve the party who issued and served the subpoena with a written objection to inspection and copying of any or all of the designated items. The objection shall state specific reasons why the subpoena should be quashed or modified. The objection shall be served on all parties to the action within 10 days after service of the subpoena or before the time specified for compliance, whichever is earlier.

Three requirements: specific reasons, framed as why the subpoena should be quashed or modified; service on all parties, not just the issuing one; and a deadline that is the earlier of ten days or the compliance date.

The payoff is immediate:

If a timely and specific objection is made, the party who issued and served the subpoena shall not be entitled to inspect or copy the subpoenaed items except pursuant to an order of the court.

Note "timely and specific." An objection that is on time but conclusory does not trigger the bar, which is why the specific-reasons requirement is not a formality.

Under Rule 57.09(c), where the objection relates to a deposition subpoena, the issuing party "may move at any time for an order to compel production" on notice to the non-party.

What the court can do instead of quashing

Rule 57.09(b) gives the court two options where a deposition subpoena also commands documents:

(1) Quash or modify the subpoena if it is unreasonable or oppressive, or (2) Require the party who issued and served the subpoena to advance the reasonable cost of producing the books, papers, documents, or tangible things.

The standard is "unreasonable or oppressive" — either will do — and the second option is the one a custodian with a large production should ask for by name. The cost is advanced, not reimbursed afterwards.

Both rules also state the duty on the issuing side: "A party or attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a non-party subject to the subpoena."

Fees are tendered, not merely offered

Rule 57.09(d):

A subpoena may be served by: (1) The sheriff or a sheriff's deputy, or (2) Any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and by tendering to that person the fees and mileage the witness would have been entitled to receive for attending court pursuant to subpoena.

There is no "if demanded" in that sentence. Service is delivery plus tender, and the measure is what the witness would have received for attending court.

Who issues one, and on what authority

For a deposition subpoena, Rule 57.09(a)(1) allows issuance "by the officer or person before whom depositions may be taken as designated in Rule 57.05 or Rule 57.06 or by the clerk of the court in which the civil action is pending." A non-party document subpoena under Rule 58.02 issues from the clerk.

And the notice does the authorizing. Rule 57.09(e):

Proof of service of a notice to take a deposition as provided in Rules 57.03 and 57.04 is sufficient to authorize the issuance of a subpoena for taking a deposition.

So the deposition notice, once served and proved, is the ticket to the subpoena — no separate application.

A subpoena for documents in conjunction with a deposition is available only where the deposition is "properly noticed under Rule 57.03," which ties the document demand to a valid deposition rather than letting it float free.

What happens if it is ignored

Both rules end the same way:

Any person who without adequate excuse fails to obey a subpoena served upon the person may be held in contempt of the court in which the civil action is pending.

The forum is the court where the case is pending, whichever county the subpoena reached.

A short checklist

If you are issuing one:

1. Serve the non-party at least 10 days before compliance.
2. Copy the subpoena to every party as if it were a pleading.
3. Put every attorney's and self-represented party's name, address and telephone number on the subpoena.
4. If you want the documents mailed to you, get all parties to agree — and confirm it to the non-party in writing, copying everyone.
5. Otherwise expect production at the specified place and time, with all parties entitled to attend.
6. Tender fees and mileage at service.

If you have been served:

1. Object within 10 days, or by the compliance date if that is sooner.
2. Give specific reasons why the subpoena should be quashed or modified. A timely but vague objection does not stop production.
3. Serve the objection on all parties, not only the issuing one.
4. Ask for the cost to be advanced rather than only for quashing — the rule provides for it.

Where these rules live

• Mo. R. Civ. P. 57.09 — Subpoena for taking deposition
• Mo. R. Civ. P. 58.02 — Subpoena to non-party for production
• Missouri motion to compel discovery
• Missouri discovery deadlines
• Missouri requests for admission
• Responding to a Missouri petition

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in Rule 57.09(d) are not carried on this site.