Oregon subpoenas: no fee at service, no obligation to appear

A subpoena is an order, and most states treat witness fees as an administrative detail attached to it. Oregon reverses that. Under ORCP 55 the money is a condition of the obligation, and a witness who is not paid at service does not have to come.

Pay at service, or the obligation does not attach

Rule 55 A(6)(b):

Unless a witness expressly declines payment of fees and mileage, the witness's obligation to appear is contingent on payment of fees and mileage when the subpoena is served. At the end of each day's attendance, a witness may demand payment of legal witness fees and mileage for the next day. If the fees and mileage are not paid on demand, the witness is not obligated to return.

Three rules in three sentences.

The duty is contingent on payment at service. Not payable later, not recoverable afterwards — paid when the subpoena is handed over, or the obligation never attaches.

And it renews daily. A witness who has attended one day may demand the next day's fees and mileage at the end of it.

Non-payment on that demand ends the obligation to return. The witness is not in contempt for going home.

The only escape is the witness's own express declination. So the practical instruction for anyone serving an Oregon subpoena is to serve it with a check or cash attached, and to budget for a multi-day witness day by day rather than once.

Rule 55 A(6)(a) explains why that matters: "A command in a subpoena to appear and testify requires that the witness remain for as many hours or days as are necessary to conclude the testimony, unless the witness is sooner discharged." A subpoena is open-ended in duration; the fee obligation is not.

Parties are treated differently. A subpoena to a party that has appeared, "including an officer, director, or member of a party organization, may be served as provided in Rule 9 B, without any payment of fees and mileage otherwise required by this rule."

The subpoena has to warn the person it commands

Rule 55 A(1)(a) sets out what the writ must contain, and the last two requirements are unusual:

(v) alert the person to whom the subpoena is directed of the entitlement to fees and mileage under paragraph A(6)(b), B(2)(a), B(2)(b), B(2)(c)(ii), B(2)(d), B(3)(a), or B(3)(b) of this rule. (vi) state the following in substantively similar terms: (A) that all subpoenas must be obeyed unless a judge orders otherwise; and (B) that disobedience of a subpoena is punishable by a fine or jail time.

The document must tell the recipient about the fees it is contingent on, and must warn about the consequence of disobedience, in substantively similar terms.

"Substantively similar" leaves the wording open but not the substance. A form subpoena drafted for another state, or an older Oregon form, will not carry either paragraph.

Who may issue one, and the condition on deposition subpoenas

Rule 55 A(3) lists four issuers: an attorney of record, the clerk, a judge or justice where there is no clerk, and the officer presiding over an administrative or out-of-court proceeding. The clerk's authority carries a condition:

Subpoenas to attend a deposition may be issued by the clerk only if the requesting party has served a notice of deposition as provided in Rule 39 C or Rule 40 A; has served a notice of subpoena for production of books, documents, electronically stored information, or tangible things; or certifies that such a notice will be served contemporaneously with service of the subpoena.

The notice comes first, or at the same moment. A deposition subpoena cannot be obtained from the clerk ahead of the notice that tells the other parties it is coming.

Service is broad: "A subpoena may be served by a party, the party's attorney, or any other person who is 18 years of age or older."

Serving by email works — with six certifications

Rule 55 B(2)(c) allows mail or electronic service where the witness waives personal service, "but such service is valid only if all of the following circumstances exist." Contemporaneously with the return of service, counsel or counsel's agent must certify:

(A) the witness agreed to appear and testify if subpoenaed by a specified date using mail or electronic transmission to a designated e-mail, text message, facsimile, or other electronic account that the witness confirmed is accurate; (B) the specific date, time, and place for the witness to appear and testify was coordinated with the witness and agreed on; (C) the mail or electronic account used to deliver the subpoena contained no typographical or other errors that would affect delivery, and a copy of the electronic transmission is attached to the certification document; (D) the mail or transmission was sent by the specific date agreed on; (E) satisfactory arrangements were made with the witness to ensure the payment of fees for one day's attendance and the mileage as allowed by law,. or the witness expressly declined payment; and (F) the party has written, recorded, or electronic confirmation from the witness that the witness received the subpoena.

Six conditions, joined by "all." The last is the one to plan for: written, recorded or electronic confirmation that the witness received it. A sent-items folder is not confirmation of receipt.

This is a route for cooperative witnesses, not a substitute for personal service on a reluctant one.

Peace officers can be served through the agency

Rule 55 B(3)(b) allows substitute service of a subpoena directed to a peace officer in a professional capacity, on an individual designated by the employing agency —

or, if a designated individual is not available, then on the person in charge at least 10 days before the date the peace officer is required to attend, provided that the peace officer is currently employed by the law enforcement agency and is present in this state at the time the agency is served.

Ten days, and two conditions about the officer: currently employed, and present in the state.

The obligations run the other way too. Agencies "must designate one or more individuals to be available during normal business hours to receive service of subpoenas," must make a good faith effort to give the officer actual notice, and if they cannot, "the agency must promptly report this inability to the court. The court may postpone the matter to allow the peace officer to be personally served."

Prisoners are different again: leave of court must be obtained before serving, the court decides whether the prisoner is produced or testifies remotely, and "The subpoena and court order must be served on the custodian of the prisoner."

Records-only subpoenas: seven days out, fourteen days in

Where a subpoena commands production or inspection before a deposition, hearing or trial, Rule 55 C(3) sets three requirements:

(a) Advance notice to parties. The subpoena must be served on all parties to the action that are not in default at least 7 days before service of the subpoena on the person or organization's representative who is commanded to produce and permit inspection, unless the court orders less time; (b) Time for production. The subpoena must allow at least 14 days for production of the required documents or things, unless the court orders less time; and (c) Originals or true copies. The subpoena must specify whether originals or true copies will satisfy the subpoena.

So the sequence is fixed: the other parties see it a week before the custodian does, and the custodian gets a fortnight. Both figures yield only to a court order.

The third requirement is a drafting point rather than a timing one, and it is easy to omit. The subpoena has to say whether copies will do.

A production subpoena with no command to appear "may be served by mail."

Health records have their own regime

Section D of Rule 55 governs confidential health information, and it is close to a self-contained rule. A party serving such a subpoena must give the custodian either a qualified protective order or a declaration demonstrating, among other things:

(i) Written notice. The party made a good faith attempt to provide the person whose CHI is sought, or the person's attorney, written notice that allowed 14 days after the date of the notice to object; (ii) Sufficiency. The written notice included the subpoena and sufficient information about the litigation underlying the subpoena to enable the person or the person's attorney to meaningfully object

A "qualified protective order" is defined as one prohibiting use of the information outside the litigation and requiring its return or destruction at the end.

The records then travel in a prescribed way. Rule 55 D(5) requires the copy to be sealed in an inner envelope inscribed with the court name, case name and number, witness name and date of the subpoena, and that envelope sealed inside an outer one addressed to the clerk, the deposition officer, the presiding officer, or — if no hearing is scheduled — the issuing attorney.

A custodian who is not a party and is not required to attend may comply by delivering a true copy "within five days after the subpoena is received," with a declaration certifying authority, completeness, and that the copy was prepared in the ordinary course of business at or near the time of the events recorded.

Two practical provisions close the section: where several parties subpoena the same custodian to attend, the custodian "will be deemed to be the witness of the party that first served such a subpoena," and nothing requires payment of more than one witness fee and mileage for one day absent agreement.

Moving to quash: two deadlines at once

Rule 55 A(7):

A motion to quash or to modify must be filed with the court and served on the party that issued the subpoena before the date set for the recipient to appear or produce, but not more than 14 days after the date that the subpoena was served. The court may quash or modify the subpoena if the subpoena is unreasonable and oppressive, or may require that the party that served the subpoena pay the reasonable costs of compliance.

Two limits running together: before the appearance date, and within 14 days of service. A subpoena served six weeks out has a window that closes long before the date on its face.

The standard is "unreasonable and oppressive" — conjunctive — and the court has a middle option short of quashing: ordering the issuing party to pay the reasonable costs of compliance.

Note also who may move: "A party or person that is subpoenaed." A party can move to quash a subpoena served on someone else only if the subpoena was directed to that party.

A short checklist

If you are issuing one:

1. Serve the fees and mileage with the subpoena. Without them there is no obligation to appear.
2. Include the fee notice and the disobedience warning; both are required contents.
3. Serve the notice of deposition first, or certify it goes out at the same time.
4. For records only: seven days' notice to the parties, fourteen days to produce, and say whether copies will do.
5. For health records, use a qualified protective order or the 14-day notice route, and seal the envelopes as the rule directs.
6. Budget a day's fees at a time for a multi-day witness.

If you have been served:

1. Count 14 days from service for a motion to quash — not backwards from the appearance date.
2. Check whether fees were tendered. If they were not, and you did not decline them, the obligation did not attach.
3. Demand the next day's fees at the end of each day of attendance.
4. Check where you can be made to go — a non-party resident need attend only in the county where they live, work, or transact business in person.

Where these rules live

• ORCP 55 — Subpoenas
• Oregon depositions
• Oregon discovery
• Oregon motion to compel discovery
• Responding to an Oregon complaint
• Oregon TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the health information statutes referred to in section D are not carried on this site.