Washington subpoenas: if you cannot get online, you have five days to say so

Remote depositions became ordinary faster than most rules of procedure did. Washington wrote the consequence into CR 45: a witness who cannot get online says so, and the burden of solving it moves to the party that issued the subpoena.

Five days to say the technology is not there

CR 45(c)(3):

If the person commanded to appear by remote means does not have adequate access to the necessary technology, they shall notify the issuing officer in writing within 5 days of receiving the subpoena. The issuing officer or commanding attorney must thereafter arrange access to the necessary technology for the witness or issue an amended subpoena to conduct the deposition in person.

Two obligations facing in opposite directions.

The witness has five days, in writing, from receipt — not from service, and not measured against the appearance date.

Then the issuing party must act, and it has only two options: arrange the technology, or amend the subpoena to bring the witness in person. There is no third option in which the deposition simply goes ahead and the witness fails to appear.

The notice requirement is printed on the face of the prescribed form in CR 45(h), so a witness receiving a Washington subpoena is told about it without having to find the rule.

The rule also requires the subpoena to be candid about the format up front. Every subpoena must command attendance "at a time and place therein specified, and, if testimony will be taken by remote means, will so state," and under CR 45(a)(2) a deposition subpoena "shall state the method for recording the testimony and whether the deposition will be conducted in person or by remote means."

Forty miles, not a hundred

CR 45(e)(2) sets the geographic limits, and the figure for out-of-state witnesses is lower than most:

A resident of the state may be required to attend an examination, produce documents, or permit inspection only in the county where the person resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of the court. A nonresident of the state may be required to attend an examination, produce documents, or permit inspection only in the county where the person is served with a subpoena, or within 40 miles from the place of service, or at such other convenient place as is fixed by an order of the court.

Residents are measured from where they live, work or transact business in person. Nonresidents are measured from the place of service — the county of service, or forty miles from it.

That limit does real work, because CR 45(g) attaches an automatic consequence to exceeding it:

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a nonparty to attend a deposition produce documents, or permit inspection at a place not within the limits provided by subsection (e)(2).

A non-party commanded beyond the limits has an adequate excuse by operation of the rule. No motion to quash is required to establish it.

Five days' notice to the other parties on a records-only subpoena

CR 45(b)(2):

A subpoena commanding production of documents and things, or inspection of premises, without a command to appear for deposition, hearing or trial, shall be served on each party in the manner prescribed by rule 5(b). Such service shall be made no fewer than five (5) days prior to service of the subpoena on the person named therein, unless the parties otherwise agree or the court otherwise orders for good cause shown. A motion for such an order may be made ex parte.

The parties see it five days before the custodian does. Two ways to shorten that — agreement, or an order for good cause — and the rule expressly allows the motion to be made ex parte, which is a practical concession for a genuinely urgent request.

Fourteen days to object, and the objection blocks production

CR 45(c)(2)(B) gives a records recipient an alternative to moving:

a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued.

Fourteen days, or the compliance date if sooner. The objection stops production without any stay order.

The issuing party may then "move at any time for an order to compel the production," on notice to the person commanded and all other parties, and:

Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.

A person commanded only to produce or permit inspection "need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial."

What the court must quash — including a fee failure

CR 45(c)(4)(A) lists four mandatory grounds, and the second is unusual:

(i) fails to allow reasonable time for compliance; (ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to undue burden, provided that the court may condition denial of the motion upon a requirement that the subpoenaing party advance the reasonable cost of producing the books, papers, documents, or tangible things.

Failure to comply with the witness fee statute is a quashing ground in its own right, sitting alongside the distance limits. Washington reserves the fee and mileage provisions to statute — CR 45(e)(1) and (f)(1) are both marked "[Reserved]" with a cross-reference — but non-compliance with them is enforced through the rule.

The proviso on ground (iv) is the middle course worth asking for: rather than quashing an unduly burdensome subpoena, the court can require the issuing party to advance the reasonable cost of production.

CR 45(c)(4)(B) adds the discretionary grounds — trade secrets and other confidential commercial information, and an unretained expert's opinion "not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party" — with the same substantial-need-plus-compensation route to conditional production.

A witness is excused once cross-examination ends

CR 45(f)(2) answers a question most rules leave to courtroom custom:

A witness subpoenaed to attend in a civil case is dismissed and excused from further attendance as soon as the witness has given testimony in chief and has been cross-examined thereon, unless either party moves in open court that the witness remain in attendance and the court so orders. Witness fees will not be allowed any witness after the day on which the witness' testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact.

So the default is release at the end of cross-examination. Keeping a witness on call requires a motion in open court and an order — and the fee consequence follows the same line: no fees after the day of testimony unless the witness was required to stay, in which case "the clerk shall note that fact."

If you may need to recall a witness, that motion has to be made before they leave.

The rule travels on the subpoena

CR 45(a)(1)(D) requires every subpoena to "set forth the text of subsections (c) and (d) of this rule" — the protections and the response duties. The prescribed form in CR 45(h) reproduces them, along with a note that an organization subpoenaed for a deposition "shall designate one or more officers, directors, or managing agents, or other persons who consent to testify on its behalf."

Issuance is available from the court under seal, from the clerk "in response to a praecipe," or from "An attorney of record of a party or other person authorized by statute," subject to the fee statute.

Service is broad — "by any suitable person over 18 years of age," by delivery or by leaving a copy at the dwelling house or usual place of abode "with some person of suitable age and discretion then residing therein." Where the server is not an officer authorized to serve process, "proof of service shall be made by affidavit."

Duties on the issuing side, and clawback

CR 45(c)(1) states the burden duty and makes enforcement mandatory:

A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court shall 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's fee.

On the responding side, documents are produced "as they are kept in the usual course of business" or organized and labeled to correspond with the demand. A privilege claim "shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim."

And where privileged material goes out by mistake, CR 45(d)(2)(B) requires a notified party to "promptly return, sequester, or destroy the specified information and any copies it has," not to use or disclose it until the claim is resolved, to retrieve anything already disclosed, and permits presentation "in camera to the court for a determination of the claim."

A short checklist

If you are issuing one:

1. Say on the subpoena whether the appearance is remote, and state the recording method for a deposition.
2. Be ready to supply technology or re-issue in person if the witness reports a five-day objection.
3. Serve the parties five days before the custodian on a records-only subpoena; an ex parte motion can shorten it.
4. Set out the text of subsections (c) and (d) on the subpoena.
5. Comply with the fee statute — failure is a mandatory quashing ground.
6. Move in open court if you need a witness to remain after cross-examination.

If you have been served:

1. Notify in writing within five days if you lack the technology for a remote appearance.
2. Object within 14 days to a records demand; that blocks production until a court orders otherwise.
3. Check the distance — 40 miles from the place of service if you are a nonresident, and exceeding it is an adequate excuse.
4. Ask for advancement of production costs rather than only for quashing.

Where these rules live

• Wash. CR 45 — Subpoena
• Washington depositions
• Washington discovery deadlines
• Washington sanctions and motions to compel
• Responding to a Washington complaint

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in CR 45(e)(1) and (f)(1) are not carried on this site.