South Dakota subpoenas: a warning in capitals, and a fee that decides whether it binds

South Dakota's subpoena rule does two things at once. It tells the recipient in capital letters that the document is as serious as a court order, and it makes the document's force depend on whether the money was tendered.

The warning the subpoena must carry

Section 15-6-45(a) requires prescribed text in bold, capitalized type immediately above the signature:

YOU SHOULD TREAT THIS DOCUMENT AS YOU WOULD A COURT ORDER. IF YOU FAIL TO COMPLY WITH THE COMMAND(S) IN THIS DOCUMENT WITHOUT ADEQUATE EXCUSE, THE COURT MAY FIND YOU IN CONTEMPT AND ASSESS MONETARY OR OTHER SANCTIONS AGAINST YOU. YOU HAVE CERTAIN OBLIGATIONS AND RIGHTS AS IT CONCERNS THIS DOCUMENT, INCLUDING THOSE SET FORTH IN SDCL § 15-6-45(b)-(g).

And a second sentence follows it:

YOU SHOULD CONSIDER CONTACTING AN ATTORNEY REGARDING YOUR OBLIGATIONS AND RIGHTS.

Three messages: treat it as a court order, contempt and sanctions follow non-compliance without adequate excuse, and you have rights, listed in subsections (b) to (g).

That last pointer is doing real work. Rather than reproducing the protective provisions on the face of the subpoena, as several states require, South Dakota tells the recipient where to find them and suggests getting advice. A subpoena drafted from another state's form will carry none of this.

No fee, no obligation

Section 15-6-45(c) makes tender a condition rather than a courtesy:

At the time of service of a subpoena, there shall be tendered to or on behalf of the person therein named the fees for one day's attendance and the mileage allowed by law.

Then the consequence:

If such fees and mileage be not paid or waived, the witness shall not be obliged to obey the subpoena.

And the obligation renews daily:

At the commencement of each day after the first day, a witness under subpoena may demand his fees for that day's attendance, and if the same is not paid, he shall not be required to remain.

Read together with the warning above, the position is coherent: the document has the force of a court order, but only once the witness has been paid.

The payment has to be documented: "The fact of such payment, or the signed waiver thereof by the person named in the subpoena, shall be stated in the return." So the return of service is where the fee question is settled, and a return that is silent about fees is a problem for the party relying on the subpoena.

Subpoenas issued on behalf of the State, its political subdivisions, or an officer or agency of either need no tender.

Who can issue one — including a notary

Section 15-6-45(a) lists a wide range of issuers: "Clerks of courts, judges, magistrates, notaries public, referees, and any other public officer or agency so empowered by § 1-26-19.1 or otherwise authorized by law in any matter pending before them."

Attorneys may issue too, on conditions:

Any attorney of record who has been duly admitted to practice in this state and is in good standing upon the active list of attorneys of the State Bar of South Dakota may issue a subpoena for a witness or witnesses, and for production, inspection and copying of records and exhibits, in any action or proceeding, or collateral hearing, civil or criminal, in which the attorney is the attorney of record for any party.

Two qualifications: admitted in South Dakota and on the active list in good standing. Out-of-state counsel appearing pro hac vice cannot issue subpoenas themselves.

An attorney-issued subpoena also has a filing duty and a form requirement:

When an attorney issues a subpoena, the attorney must contemporaneously transmit a copy thereof to the clerk of the court, or to the secretary or other filing officer of the board or tribunal in which the matter is pending, for filing.

The clerk "shall file such copy as one of the public records of the action or proceeding." And the subpoena "shall be issued in the name of the presiding officer of the court, or tribunal in which the matter is pending and shall be attested and signed by the attorney, designating the party for whom the attorney is attorney of record."

So an attorney-issued South Dakota subpoena is on the public file from the moment it goes out. There is no private subpoena practice here.

Every subpoena must also "state the name of the person or party for whom the testimony of the witness is required," and where the issuer has a seal, "The seal of the court or officer, or tribunal, shall be affixed to the original and all copies."

Notice to the parties before a documents subpoena

Section 15-6-45(b):

Before a subpoena commanding the production of documentary evidence is served on the person to whom it is directed, a notice and copy of the subpoena must be served on each party to the matter pending.

A notice and a copy, to each party, before the custodian is served. South Dakota fixes the order rather than a number of days.

The same subsection makes clear that a documents subpoena stands alone: it may command production "regardless of whether the attorney also notices the person's deposition or commands the presence of the person to which it is directed to give testimony at a hearing."

Service like a summons, and enough time to travel

Section 15-6-45(c) borrows the process rules with one exclusion:

The subpoena may be served by any officer or person qualified to make service of a summons.

The subpoena shall be served in the same manner as a summons is served, excepting that no service by publication is authorized.

Then a timing standard expressed in terms of the witness's journey rather than a fixed count:

The subpoena must be served sufficiently in advance of the date upon which the appearance of the witness is required to enable such witness to reach such place by any ordinary or usual method of transportation which he may elect.

Note "which he may elect." The measure is not the fastest route available but the ordinary or usual method the witness chooses — which in a large, thinly populated state can mean a good deal more notice than a fixed number of days would give.

Where a witness can be made to attend

Section 15-6-45(d)(2) draws the limits by county:

A resident of this state may be required to attend an examination only in the county wherein he resides or is employed or transacts his business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of this state may be required to attend only in the county wherein he is served the subpoena, or at such other convenient place as is fixed by an order of the court.

Residents are measured from home, work or in-person business; non-residents from the county of service.

Non-residents served in the state are not exempt from the subpoena. Section 15-6-45(e):

A nonresident of this state who is served with subpoena in this state shall be required to obey the same; provided, that the mileage required to be paid such witness as provided in § 15-6-45(c) shall be computed from the place of service of the subpoena to the place of attendance.

So the obligation attaches, and the mileage is calculated from where they were served.

Depositions: the notice authorizes the subpoena

Section 15-6-45(d)(1):

Proof of service of a notice to take a deposition as provided in §§ 15-6-30(b) and 15-6-31(a) constitutes a sufficient authorization for the issuance by any person specified in § 15-6-45(a) or by the clerk of courts of the county in which the deposition is to be taken of subpoenas for the persons named or described therein.

Two possible issuers once the notice is proved: anyone on the (a) list, or the clerk of the county where the deposition will be taken — which is useful when the deposition is far from the court hearing the case.

Such a subpoena may also command production of materials "which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by § 15-6-26(b)."

Contempt, in either court

Section 15-6-45(f):

Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court wherein the action is pending or of a court from which the subpoena may have been issued.

Two possible forums, which matters where the subpoena came from a clerk in the deposition county rather than from the court hearing the case.

A short checklist

If you are issuing one:

1. Include the bold capitalized warning immediately above the signature.
2. Tender the fees and mileage at service, and state the payment or waiver in the return.
3. File a copy with the clerk contemporaneously if you issued it as an attorney.
4. Serve a notice and copy on every party before serving a documents subpoena.
5. Allow enough time for the witness to travel by their chosen ordinary method.
6. Check that the issuing attorney is on the active list — pro hac vice counsel cannot issue.

If you have been served:

1. Check whether fees were tendered. Without them, and absent a waiver, you are not obliged to obey.
2. Demand each day's fees before that day begins; if they are not paid you need not remain.
3. Check the county. Residents attend where they live, work or do business; non-residents where they were served.
4. Read the warning's cross-reference — subsections (b) to (g) are where your rights are set out.

Where these rules live

• S.D. Codified Laws § 15-6-45 — Subpoena
• South Dakota motion to compel discovery
• Responding to a South Dakota complaint
• South Dakota summary judgment
• South Dakota TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in § 15-6-45(c) are not carried on this site.