Montana subpoenas: health care records have their own statute, and the rule sends you to it

Most of Montana's Rule 45 will look familiar to anyone who knows the restyled federal rule. Two provisions do not, and both concern who has to be told what before records change hands.

Health care information is governed elsewhere

Rule 45(a)(4) is one sentence, and it redirects the whole exercise:

A party or an attorney responsible for the issuance and service of a subpoena seeking health care information, as defined by Title 50, Chapter 16, shall comply with the provisions of Title 50, Chapter 16.

Montana does not attempt to regulate medical-records subpoenas inside Rule 45. It points at the Uniform Health Care Information Act and makes compliance with that statute an obligation of the issuing party or attorney, not merely of the custodian who receives the subpoena.

The practical consequence is that a Rule 45-compliant subpoena is not enough where health care information is sought. Whatever notice, authorization or certification Title 50, Chapter 16 requires has to be satisfied as well, and the duty is on the person issuing the subpoena. That statute is outside the rules this site carries, so check it directly before serving.

Ten days' notice before production

Rule 45(c)(1) is Montana's version of the notice-to-parties requirement, and its clock runs to the production date rather than to service:

Notice shall be provided to all parties no less than 10 days before the commanded production of documents, electronically-stored information, or tangible things, or inspection of premises before trial, and shall be served on each party in the manner prescribed by Rule 5 (b).

Compare the states that count backwards from service on the recipient — Nevada and Idaho both require notice a set number of days before the third party is served. Montana measures to the day the records are due. That is easier to satisfy and gives an objecting party less room, so build in more than the minimum if you expect a fight.

The requirement covers pretrial production and inspection. A subpoena purely for testimony is outside it.

Which court, and who signs

Rule 45(a)(2) keeps it simple: "Except as provided in Rule 28 (c)(2), a subpoena must issue from the court in which the action is pending." The exception in Rule 28 handles depositions in another state.

Attorneys may issue too:

An attorney also may issue and sign a subpoena as an officer of: (A) a court in which the attorney is authorized to practice; or (B) a court for a district where a deposition is to be taken or production is to be made, if the attorney is authorized to practice in the court where the action is pending.

Limb (B) lets an attorney issue out of a district they do not practice in, so long as they are admitted in the court hearing the case.

Serving it

Rule 45(b) is brief:

A subpoena may be served by any 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, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law.

Personal delivery, and — where attendance is commanded — the fee and mileage tendered at that moment.

Electronic information

Rule 45(a)(1) allows the subpoena to name a format: "A subpoena may specify the form or forms in which electronically-stored information is to be produced." And a command to produce "requires the responding party to permit inspection, copying, testing, or sampling of the materials," so the recipient is not obliged to do the copying itself unless the subpoena says so.

A deposition subpoena must state the recording method.

One hundred miles

Montana's geography produces the longest travel radius in this set. Rule 45(d)(3)(A) makes the court quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person — except that, subject to Rule 45(d)(3)(B)(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.

A hundred miles, measured from where the witness lives, works or regularly transacts business — four times Vermont's fifty and four times D.C.'s twenty-five. For trial, the reach is the whole state.

All four grounds are mandatory. Rule 45(d)(3)(B) adds the discretionary ones: trade secrets and other confidential research, development or commercial information, and an unretained expert's opinion.

Producing documents and electronic information

Rule 45(e)(1) sets the defaults:

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form of Producing Electronically-Stored Information Not Specified. If a subpoena does not specify a form for producing electronically-stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

The choice between producing "as kept" and organizing to the demand's categories belongs to the responder, not the requester — which is why specifying the categories carefully matters more than it looks.

A short checklist

Issuing one:

1. Check whether you are seeking health care information. If so, Title 50, Chapter 16 governs and the duty to comply is yours.
2. Give all parties 10 days' notice before the production date, served under Rule 5(b).
3. Issue from the court where the action is pending, unless Rule 28(c)(2) applies.
4. Use the limb (B) attorney authority where the discovery sits in another district.
5. Tender the fee and mileage when you serve, if attendance is commanded.
6. Specify the form for electronically stored information if the format matters.

Receiving one:

1. Check the notice date. Ten days before production is the floor, and it runs to the production date.
2. If the request reaches medical records, ask whether the statute's requirements were met — they bind the issuer, not you.
3. Check for the fee if attendance is commanded; it should have arrived with the subpoena.
4. Object to the form of electronic production if the one specified is burdensome.

Where these rules live

• Mont. R. Civ. P. 26 — Duty to Disclose; General Provisions Governing Discovery
• Mont. R. Civ. P. 28 — Persons Before Whom Depositions May Be Taken
• Mont. R. Civ. P. 30 — Depositions by Oral Examination
• Mont. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• Montana motion to compel discovery

This page explains what the rules say. It isn't legal advice, and Title 50, Chapter 16 — the health care information statute this rule defers to — is not carried on this site.