North Dakota subpoenas: no fees tendered, no obligation to obey — and metadata is defined for you

Two provisions make North Dakota's Rule 45 worth reading even if you know the federal version well. One turns an untendered witness fee into a complete answer to the subpoena. The other settles, in the text of the rule, an argument that most states leave to litigation: what "electronically stored information" includes.

Tender the fees or the subpoena does nothing

Rule 45(b)(1)(B):

If the subpoena requires the person's attendance, fees for one day's attendance, mileage and travel expense allowed by law must be tendered. If fees, mileage and travel expenses are not tendered with the subpoena, the person need not obey the subpoena. Fees, mileage and travel expense need not be tendered if they are to be paid by the state or a political subdivision.

Three components — attendance fee, mileage, and travel expense — and the sanction for omitting any of them is not a fee award or a motion. The recipient simply does not have to comply.

Note the timing: tendered with the subpoena, not on arrival and not on request. A subpoena served without the money attached is, in practical terms, a request.

The exception runs the other way from most states': it is not about who issued the subpoena but about who pays. Fees need not be tendered "if they are to be paid by the state or a political subdivision."

Metadata, defined

Rule 45(a)(1)(C) does something unusual — it decides the metadata question in advance:

The phrase "electronically stored information" includes reasonably accessible metadata that will enable the party seeking production to have the ability to access such information as the date sent, date received, author, and recipients. The phrase does not include other metadata unless the party seeking production and the subject of the subpoena agree otherwise or the court orders otherwise on motion and a showing of good cause for the production of certain metadata.

Read it as a default with a narrow core. In by default: the transmission-level fields — date sent, date received, author, recipients. Out by default: everything else, including the file-system and application metadata that expert-driven disputes usually turn on.

Getting more takes agreement or a motion showing good cause for the production of certain metadata — "certain," so a blanket demand for all metadata is not what the rule contemplates.

For a responding party, this is a shield worth citing early. For a requesting party, it means the metadata you need has to be identified and justified rather than assumed.

Who issues it

The clerk "must issue a subpoena in the name of the court for the county in which the action is filed, signed but otherwise blank, to a party who requests it." An attorney may issue one too:

An attorney authorized to practice in North Dakota also may issue a subpoena, which must be signed by the attorney, include the attorney's office address and identify the party the attorney represents.

Three requirements on an attorney-issued subpoena — signature, office address, and which party the attorney acts for. That last one is worth checking on a subpoena you receive: it tells you whose interests the request serves before you spend anything answering it.

Every subpoena must state "the title of the action, the court in which it is pending, and its civil-action number" and command what it commands. A deposition subpoena must state the recording method.

For a case pending elsewhere, the rule points outside itself: "N.D.R.Ct. 5.1 defines the procedure for discovery or depositions in an out-of-state action."

Service

"A subpoena to a named person must be served under Rule 4 (d)" — the same personal-service machinery as a summons, not the looser methods some states allow.

Quashing: what the court must do, and what it may do

Rule 45(d)(3) splits the grounds in two.

Mandatory:

(A) When required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires attendance beyond the location requirements of Rule 45(c)(3); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.

Discretionary:

(B) When permitted. To protect a person subject to or affected by a subpoena, the issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

The split matters when you draft. A motion resting on undue burden or privilege asks the court to do something it must do once the ground is made out. A motion resting on trade secrets or an unretained expert's opinion asks for discretion, and should be argued that way — with a proposed protective alternative rather than a demand.

Limb (B)(ii) is worth knowing for professionals who keep being subpoenaed for opinions they were never retained to give.

Where a person can be made to go

Rule 45(d)(3)(A)(ii) does not state a distance itself — it incorporates the location requirements of Rule 45(c)(3), and makes exceeding them a mandatory ground for quashing. So the two subdivisions have to be read together: (c)(3) says where compliance may be required, and (d)(3) makes that limit enforceable.

That drafting choice matters when you write the motion. The ground is not "this is too far" as a matter of impression; it is that the subpoena "requires attendance beyond the location requirements of Rule 45(c)(3)," and the motion should cite the specific limit exceeded.

The issuer's duty, and conditions instead of quashing

Rule 45(d)(1) requires a party or attorney responsible for issuing and serving a subpoena to take reasonable steps to avoid imposing undue burden or expense on the person subject to it, and directs the court to enforce that duty with an appropriate sanction.

Rule 45(d)(3)(C) then offers the middle path: "In the circumstances described in Rule 45(c)(4)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions." For a non-party facing a trade-secret or unretained-expert subpoena, proposing conditions is usually a better opening than demanding that the subpoena be struck.

A short checklist

Issuing one:

1. Attach the money. Fees, mileage and travel expense, tendered with the subpoena.
2. Sign it properly if you issue as an attorney — signature, office address, and the party you represent.
3. Issue from the county where the action is filed.
4. Serve it under Rule 4(d), like a summons.
5. Name the metadata you need, and be ready to show good cause for anything beyond sender, recipient and dates.
6. State the recording method on a deposition subpoena.

Receiving one:

1. Check for the fees first. Without them you need not obey.
2. Check the issuer's details — an attorney-issued subpoena missing the office address or the party represented is defective on its face.
3. Use the metadata default. Anything beyond the named fields is outside the subpoena unless agreed or ordered.
4. Match the ground to the relief — mandatory quashing for burden, privilege, time or location; discretionary for trade secrets and unretained expert opinion.

Where these rules live

• N.D. R. Civ. P. 4 — Persons Subject to Jurisdiction; Process; Service
• N.D. R. Civ. P. 26 — Duty to Disclose; General Provisions Governing Discovery
• N.D. R. Civ. P. 30 — Depositions by Oral Examination
• N.D. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• North Dakota motion to compel discovery

This page explains what the rules say. It isn't legal advice, and N.D.R.Ct. 5.1, which governs out-of-state discovery, is a court rule outside the civil-procedure set this site carries.