Nebraska subpoenas: a ground you leave out of your objection is waived

Nebraska's non-party subpoena rule runs on objections rather than motions. There are two separate objection rights — one belonging to the other parties before the subpoena issues, one belonging to the recipient after — and the second comes with a waiver rule that decides what can be argued later.

State every ground, or lose it

Section 6-334(A)(e)(1)(B):

The objection must state the grounds for the objection and must also state with specificity why the subpoena is objectionable on those grounds. Any ground not stated in a timely objection is waived unless (i) the objection is based on a privilege or the work product protection or (ii) the court, for good cause, excuses the failure.

Two requirements and one consequence. The objection must state the grounds and must state with specificity why the subpoena is objectionable on them. Anything left out is gone.

Two escapes only: privilege and work product, which survive an incomplete objection, and good cause excused by the court.

That makes the fourteen-day objection the moment at which a recipient's whole case against the subpoena has to be assembled. A holding objection that says "overbroad and unduly burdensome, further grounds reserved" reserves nothing.

The timing is short: "The objection must be in writing and served within 14 days after the subpoena was served." The party receiving it "must promptly serve a copy of the objection on all the other parties to the action."

What the objection buys is immediate: "If the person serves an objection, the person is not required to produce the objected-to items or to permit entry unless a court orders otherwise."

The other parties get to object before it issues

Before any of that, section 6-334(A)(b)(1) requires notice:

A party who intends to serve a subpoena pursuant to this rule must serve a written notice on every other party at least 14 days before issuance of the subpoena. Leave of court or a stipulation of the parties is required only if a plaintiff seeks to serve the notice within 30 days after service of the summons and no defending party has served such a notice.

Fourteen days, and a further restriction at the start of a case: a plaintiff who wants to give notice within thirty days of service of the summons needs leave or a stipulation, unless a defending party has already gone first.

Then subsection (c) gives every other party a veto:

Before the subpoena is issued, any party may serve a written objection to the subpoena on all the other parties, including the party who gave written notice of the intent to serve the subpoena.

The permitted grounds are three: the production or entry is "(i) protected by a privilege, in which case the party must identify the applicable privilege, (ii) not within the scope of Rule 26(b), or (iii) would be unreasonably intrusive or oppressive to the party."

And the consequence:

Unless the party withdraws the objection or the court orders otherwise, a subpoena may not command the production of any items or the entry onto any land to which an objection has been made pursuant to subpart (1) of this rule.

So the subpoena cannot issue as to the objected-to material. The party who wants it "may move for an order on the objection," filed where the action is pending, and the court may sustain or overrule it in whole or in part, order discovery to proceed differently, enter a protective order, or "award expenses as authorized in Rule 37(a)(5)."

One neat provision sits alongside: where the subpoena is for entry onto land, "any party may request that it be named in the subpoena as also entering at the same time and place." Nobody has to serve a second subpoena to walk the same site.

The subpoena has to name who was noticed, and carry the rule

Section 6-334(A)(d)(2) sets out six required contents, and the last two are unusual:

(E) state the name of each party who was given written notice that the subpoena would be issued and the date on which the party was given notice; and (F) include this rule, either in the text of the subpoena or as an attachment to the subpoena.

Naming the noticed parties and the notice dates puts the compliance history on the face of the document, so a recipient can see whether the fourteen days actually ran.

And the rule travels with the subpoena. The recipient does not have to look up the objection deadline or the waiver provision; both arrive attached.

The designations themselves "must describe the documents, electronically stored information, or items with reasonable particularity," and a subpoena may specify the form in which electronically stored information is to be produced.

Issuance is available two ways under (d)(1): from "the clerk of the court where the action is pending upon the request of a party" or "by an attorney on behalf of the court if the attorney is authorized to practice in the court."

Fourteen days again — twice

Service carries its own two deadlines, and both are measured backwards from the production date rather than forwards from issuance. Under (d)(5), a subpoena "must be served on the person to whom it is directed no less than 14 days before the time specified for production or entry." Under (d)(6), the serving party "must also serve a copy of the subpoena on the other parties no less than 14 days before the time specified for production or entry."

So the full sequence for a Nebraska non-party subpoena is: notice of intent, fourteen days, issuance, then service on the recipient and the parties at least fourteen days before production. A month is a realistic planning figure.

Copies instead of inspection, paid in advance

Section 6-334(A)(a)(2) lets the subpoena offer a choice:

The subpoena may give the person the option of (A) producing documents or electronically stored information for inspection or (B) providing copies of the documents or information by the date specified in the subpoena. If the subpoena gives the person such an option, the person may condition preparation of the copies on advance payment of the reasonable cost of preparing the copies.

The option is the issuing party's to offer; the advance payment is the recipient's to demand once it is offered.

What the issuing party receives does not stay with it. Subsection (h):

If the party who served the subpoena creates or obtains copies of any items from the person served with the subpoena, the party must make duplicate copies available to any other party who requests them and pays in advance the reasonable cost of making the duplicates.

Moving to quash: the earlier of two dates

Where an objection is not the right tool, section 6-334(A)(e)(2) supplies the motion:

The motion must be filed in the court where the action is pending before the time specified for compliance or within 14 days after the subpoena was served, whichever is earlier, and must also be served on all the parties. The court must grant the motion to quash or modify if the subpoena: (A) fails to allow a reasonable time for compliance; (B) requires disclosure of privileged or other protected matter, and no exception or waiver applies; or (C) subjects the person to undue burden.

Note "whichever is earlier." A subpoena that allows six weeks still has a fourteen-day motion window.

Three mandatory grounds, phrased as a duty on the court — "must grant." Separately, after issuance "any party or the person served with a subpoena may move for a protective order pursuant to Rule 26(d)."

The duty not to overburden, enforced by the court

Section 6-334(A)(d)(8):

A party or an attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court by which the subpoena was issued must enforce this duty and impose an appropriate sanction – which may include lost earnings and reasonable attorney fees – on a party or attorney who fails to comply.

"Must enforce" and "impose an appropriate sanction." Lost earnings are named, which is the head of loss a non-party witness most often actually suffers.

The same protection appears in the order stage: an order compelling compliance "must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance."

Responding: form, and withholding

Section 6-334(A)(f)(1) carries the familiar production rules — documents produced "as they are kept in the ordinary course of business" or organized and labeled to correspond to the subpoena's categories; electronically stored information in the form specified or, absent a specification, as ordinarily maintained or in a reasonably usable form; and no obligation to produce the same information in more than one form.

Withholding on privilege requires two steps under (f)(2): expressly make the claim, and:

describe the nature of the documents, communications, or tangible not produced – and do so in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

Where privileged material is produced anyway, subsection (g) points to Rule 26(b)(5), which supplies the clawback procedure.

Depositions ride on a statute

Section 6-334(A)(a)(3) connects this rule to the deposition statutes:

Pursuant to Neb. Rev. Stat. § 25-1224, the subpoena may command the person to appear and testify at a deposition at the time and place specified for production. Such a subpoena must comply with this rule and contain the information that the statutes and Rule 30(b)(1)(E) require for deposition subpoenas. It must also contain a statement of the method for recording the testimony.

So a combined subpoena has to satisfy three sources at once — this rule, the statutes, and Rule 30 — and must state the recording method.

A short checklist

If you are issuing one:

1. Give 14 days' written notice of intent to every party before issuance.
2. Expect any party's objection to block the objected-to material until you get an order.
3. Name the noticed parties and the notice dates on the subpoena, and attach the rule.
4. Serve the recipient and the parties at least 14 days before production.
5. Offer the copies option if inspection is not needed — but expect to pay for the copies in advance.
6. Share what you get. Other parties can demand duplicates at their own cost.

If you have been served:

1. Put every ground in the objection, with specifics. Anything omitted is waived.
2. Serve it within 14 days; the objection alone suspends your duty to produce.
3. If you move to quash instead, count the earlier date — compliance time or 14 days from service.
4. Ask for lost earnings if the subpoena has cost you time; the rule names them.

Where these rules live

• Neb. Ct. R. Disc. § 6-334(A) — Subpoenas commanding nonparties to produce documents
• Neb. Ct. R. Disc. § 6-334 — Producing documents and things
• Nebraska motion to compel discovery
• Nebraska requests for admission
• Responding to a Nebraska complaint
• Nebraska summary judgment

This page explains what the rules say. It isn't legal advice, and the deposition statutes referred to in § 6-334(A)(a)(3) are not carried on this site.