Utah subpoenas: the party that issued it pays for the copying

In most states a subpoenaed non-party can ask a court to shift the cost of a burdensome production. Utah does not make it ask. The obligation is stated flatly in the rule, and the mechanism for collecting it is built into the response.

The issuing party must pay

Rule 45(d):

The party or attorney responsible for issuing the subpoena must pay the reasonable cost of producing or copying documents, electronically stored information, or tangible things. Upon the request of any other party and the payment of reasonable costs, the party or attorney responsible for issuing the subpoena must provide to the requesting party copies of all documents, electronically stored information, or tangible things obtained in response to the subpoena or must make the tangible things available for inspection.

Must pay — no motion, no showing of undue burden, no discretion. Producing costs are the issuing party's.

The second sentence extends the same logic sideways: other parties can have copies of whatever the subpoena produced, paying the reasonable cost of the copies to the party that obtained them.

So the economics are settled in advance. A Utah subpoena for a large production is a decision to fund that production.

And the custodian states the bill in a sworn declaration

Rule 45(f)(1) tells the responding person what to serve along with the material:

A person commanded to copy and mail or deliver documents, or electronically stored information, or to produce documents, electronically stored information, or tangible things must serve on the party or attorney responsible for issuing the subpoena a declaration under penalty of law stating in substance: (A) that the declarant has knowledge of the facts contained in the declaration; (B) that the documents, electronically stored information, or tangible things copied or produced are a full and complete response to the subpoena; (C) that the documents, electronically stored information, or tangible things are the originals or that a copy is a true copy of the original; and (D) the reasonable cost of copying or producing the documents, electronically stored information or tangible things.

Four statements, and the fourth is the invoice. The cost is not sent separately or argued about later; it is part of the sworn response.

The first three are worth noting too. The declaration certifies completeness and authenticity, which means a properly answered Utah subpoena arrives with its own foundation.

A subpoena can simply say "mail me copies"

Rule 45(a)(1)(C) lists four things a subpoena may command, and the third is a category most states handle by custom rather than by rule:

(iii) to copy documents or electronically stored information in the possession, custody or control of that person and mail or deliver the copies to the party or attorney responsible for issuing the subpoena before a date certain

No appearance, no inspection, no deposition — just copy and send by a date. Read with subrule (d), the recipient copies, sends, declares the cost, and is paid.

Where an appearance is required, Rule 45(a)(1)(D) adds a requirement written for remote proceedings: the subpoena must give notice of the date, time and place, "and, if remote transmission is requested, instructions for participation and whom to contact if there are technical difficulties."

That second clause is unusual and practical. A witness appearing by video is entitled to be told how to join and who to call when it does not work.

Notice to the parties comes before service

Rule 45(b)(3):

If the subpoena commands a person to copy and mail or deliver documents, or electronically stored information, to produce documents, electronically stored information, or tangible things for inspection, copying, testing, or sampling, or to permit inspection of premises, the party or attorney responsible for issuing the subpoena must serve each party with the subpoena by delivery or other method of actual notice before serving the subpoena.

Utah sets no waiting period, but it does fix the order and the quality of the notice: actual notice to each party, before the custodian is served.

On fees, Rule 45(b)(2) requires tender with the subpoena where an appearance is commanded — "the fees for one day's attendance and the mileage allowed by law" — with an exemption where the subpoena issues on behalf of the United States, the state, or an officer or agency of either.

Fourteen days, and nine grounds to object

Rule 45(e)(2) sets the floor for a production subpoena: it must comply with the document-request rule "except that the person subject to the subpoena must be allowed at least 14 days after service to comply."

Rule 45(e)(3) then lists nine grounds of objection, available to "The person subject to the subpoena or a non-party affected by the subpoena." They include the familiar ones — unreasonable time, privilege, trade secrets, undue burden or cost, unretained experts — and three that are specific:

(B) requires a resident of this state to appear at other than a trial or hearing in a county in which the person does not reside, is not employed, or does not transact business in person; (C) requires a non-resident of this state to appear at other than a trial or hearing in a county other than the county in which the person was served; ... (G) requires the person to produce electronically stored information in a form or forms to which the person objects

Grounds (B) and (C) mirror the appearance limits in Rule 45(c): trial or hearing in the county where the case is pending, but depositions and productions only in the county where a resident lives, works or transacts business, or where a non-resident was served.

The objection has a form requirement that is easy to fall foul of. Rule 45(e)(4)(B): "The objection must be stated in a concise, non-conclusory manner." A page of boilerplate is not an objection under this rule.

Where privilege or a trade secret is the ground, the objection "must sufficiently describe the nature of the documents, communications, or things not produced to enable the party or attorney responsible for issuing the subpoena to contest the objection."

An objection stops compliance topic by topic

Rule 45(e)(5)(A):

If an objection is made under this rule, or if a party requests a protective order, the party issuing the subpoena is not entitled to compliance on any topic for which an objection has been made but may request an order to compel compliance under Rule 37(a).

Note "on any topic for which an objection has been made." An objection to part of a subpoena does not suspend the rest — the unobjected topics remain live, which is a reason to object precisely rather than globally.

The objection is served on the issuing party, and "The party or attorney responsible for issuing the subpoena must promptly serve a copy of the objection on the other parties."

If the issuing party goes to Rule 37(a), the protections continue:

An order compelling compliance must protect the person subject to or affected by the subpoena from significant expense or harm. The court may quash or modify the subpoena. If the party shows a substantial need for the information sought by the subpoena that cannot be met without undue hardship, the court may order compliance upon specified conditions.

Evading service can produce a warrant

Rule 45(h):

If a witness evades service of a subpoena or fails to attend after service of a subpoena, the court may issue a warrant to the sheriff of the county to arrest the witness and bring the witness before the court.

Two triggers, and the first does not require that service ever succeeded. Evasion is itself enough.

Inmates are handled by motion rather than subpoena. Under Rule 45(i), where the witness is an inmate "a party may move for an order to examine the witness in the institution or to produce the witness before the court or officer for the purpose of being orally examined."

And Rule 45(j) closes a gap that arises more often than it should: "A person present in court or before a judicial officer may be required to testify in the same manner as if the person were in attendance upon a subpoena." Someone already in the room can be called without paper.

Who issues it, and what it must contain

Rule 45(a)(2) offers two routes: "The clerk must issue a subpoena, signed but otherwise in blank, to a party requesting it, who must complete it before service. An attorney admitted to practice in Utah may issue and sign a subpoena as an officer of the court."

Every subpoena must issue from the court where the action is pending and state the title and case number, the court, and "the name and address of the party or attorney responsible for issuing the subpoena" — the phrase the rule uses throughout when allocating duties, including the duty to pay.

It must also "include a notice to persons served with a subpoena in a form substantially similar to the approved subpoena form."

Rule 45(e)(1) states the burden duty with mandatory enforcement: the court "will enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney fee."

A short checklist

If you are issuing one:

1. Budget for the production. You must pay the reasonable cost of copying.
2. Serve every party with actual notice before serving the custodian.
3. If the appearance is remote, include joining instructions and a technical contact.
4. Allow at least 14 days for a production subpoena.
5. Tender a day's fees and mileage where an appearance is commanded.
6. Expect an invoice in the declaration, and check it against the work actually done.

If you have been served:

1. Serve the declaration with your production — completeness, authenticity, and your cost.
2. Object in writing before the compliance date, concisely and without boilerplate.
3. Object topic by topic. Only the objected-to topics are suspended.
4. Check the county. Depositions and productions are limited to where you live, work, or were served.

Where these rules live

• Utah R. Civ. P. 45 — Subpoena
• Utah motion to compel discovery
• Utah initial disclosures
• Utah requests for admission
• Responding to a Utah complaint
• Utah TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in Rule 45(b)(2) are not carried on this site.