West Virginia subpoenas: counties, not miles

Most versions of Rule 45 draw the limit on a subpoena's reach with a number of miles. West Virginia draws it with a county line, and the difference matters in a state where a hundred miles can cross most of the map.

The limit is the county, and there is no mileage alternative

Rule 45(c):

A deponent may be required to attend an examination only in the county in which the deponent resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of court.

Three connections to a county — residence, employment, or transacting business in person — and nothing else unless the court fixes a place.

Read what is absent. There is no "within 100 miles" alternative, and no separate rule for non-residents measured from the place of service. A deponent with no connection to a county cannot be made to attend there on the subpoena alone; it takes a court order fixing a convenient place.

The same limit appears as a mandatory quashing ground. Rule 45(d)(3)(A) requires the court to quash or modify a subpoena that:

requires a person to travel for a deposition to a place other than the county in which that person resides or is employed or transacts business in person or at a place fixed by order of the court

Note the scope of both provisions: they speak of a deposition. Attendance at trial or a hearing is not limited by this rule, and service reaches the whole state.

Service is statewide, and fees are tendered only if demanded

Rule 45(b)(2) is one sentence: "A subpoena may be served at any place within the State of West Virginia."

Rule 45(b)(1) sets out how:

A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made in the same manner provided for service of process under Rule 4(d)(1)(A) and by tendering to that person if demanded the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the State or an officer or agency thereof, fees and mileage need not be tendered.

Two points worth holding onto.

Service follows the process rule, not a looser subpoena-specific method — Rule 4(d)(1)(A), the personal service provision.

And fees are tendered "if demanded." A witness who says nothing at service is not owed the money then. That is the opposite of the position in states where tender is a condition of the obligation to appear, so a West Virginia witness who wants the fee has to ask for it at the door.

The State and its officers and agencies are exempt from tendering at all.

Proof of service, where needed, means "filing with the issuing court a statement showing the date and manner of service and the names of the persons served," and "The statement shall be certified by the server."

Notice — and a copy — to every party first

Rule 45(a)(4):

If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena shall be served on each party.

Two documents, not one: a notice and a copy of the subpoena. The parties see the actual instrument, not a description of it.

West Virginia sets no waiting period between that service and service on the custodian — only the order. Rule 45(b)(1) repeats the requirement and fixes the method: "Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b)."

Fourteen days to object, and the objection stops production

Rule 45(d)(2)(B) gives the recipient the alternative to a motion:

The objection shall be served before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an 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

The deadline is a race between two dates, and the earlier wins. A subpoena allowing thirty days still carries a fourteen-day objection window.

Once an objection is in, production stops without any stay order. The serving party may move to compel "At any time, on notice to the commanded person," and:

These acts may be required only as directed in the order, and the order shall protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

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

The burden duty is enforced at the court's discretion

Rule 45(d)(1):

A party or attorney responsible for issuing and serving a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court on behalf of which the subpoena was issued may 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 fees.

The duty itself is mandatory — "shall take reasonable steps." But enforcement is not: the court "may enforce this duty."

That is a real difference from the federal rule and from most states that copied it, which say the court "must" enforce and "must" impose an appropriate sanction. In West Virginia a burdened non-party is asking the court to exercise a discretion rather than to perform a duty, and the request should be framed that way — with the burden quantified, since lost earnings and fees are what the rule names.

What must be quashed, and what may be

Rule 45(d)(3)(A) lists four mandatory grounds: failure to allow a reasonable time to comply, the county limit for depositions, disclosure of privileged or protected matter where no exception or waiver applies, and undue burden.

Subsection (B) adds two discretionary ones:

(i) disclosing a trade secret or other confidential research, development, or commercial information; or (ii) disclosing an unretained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

Note the forum in subsection (B): "the court where compliance is required" may act, whereas the mandatory grounds are for "the court on behalf of which the subpoena was issued."

And rather than quashing, the court may specify conditions as an alternative, on the familiar showing of substantial need that cannot be met without undue hardship together with assurance of reasonable compensation.

The rule travels on the subpoena

Rule 45(a)(1)(A) requires every subpoena to state the issuing court, the title and civil-action number, the command — and:

(iv) set out the text of Rule 45(d) and (e).

Subdivision (d) is the protection provision and (e) is the response duties, so a recipient holding the subpoena also holds the objection deadline, the quashing grounds and the production rules.

Two further content rules: a subpoena commanding attendance at a deposition "shall state the method for recording the testimony," and a subpoena "may specify the form or forms in which electronically stored information is to be produced."

Issuance runs two ways under Rule 45(a)(3): "The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it. That party shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena if the attorney is authorized to practice in the issuing court."

Responding, and getting privileged material back

Rule 45(e) carries the response duties. Documents are produced "as they are kept in the ordinary course of business" or organized and labeled to correspond to the categories in the demand. Electronically stored information goes out in the form specified or, if none is, as ordinarily maintained or in a reasonably usable form — and never in more than one form.

Sources that are not reasonably accessible may be withheld, but "On motion to compel discovery or for a protective order, the person responding shall show that the information is not reasonably accessible because of undue burden or cost."

Withholding on privilege requires an express claim plus a description sufficient to let the parties assess it. Where privileged material is produced anyway:

After being notified, a party shall promptly return, sequester, or destroy the specified information and any copies it has; shall not use or disclose the information until the claim is resolved; shall take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for the circuit where compliance is required for a determination of the claim.

The producing person "shall preserve the information until the claim is resolved."

Failure to obey a subpoena without adequate excuse is punishable as contempt by the circuit court.

A short checklist

If you are issuing one:

1. Check the county, not the mileage. A deposition subpoena reaches only where the deponent lives, works or transacts business in person.
2. Serve a notice and a copy on every party before serving the custodian.
3. Set out the text of Rule 45(d) and (e) on the subpoena.
4. State the recording method on a deposition subpoena.
5. Ask the court to fix a convenient place if you need a deponent outside their county.
6. Remember service reaches the whole state, even though attendance does not.

If you have been served:

1. Demand your fees at service. They are tendered only if demanded.
2. Object within 14 days, or by the compliance date if that is earlier; the objection stops production.
3. Quantify your burden. Enforcement of the undue-burden duty is discretionary here, so give the court a figure.
4. Check which court to move in — the issuing court for the mandatory grounds, the court where compliance is required for trade secrets and unretained experts.

Where these rules live

• W. Va. R. Civ. P. 45 — Subpoena
• West Virginia motion to compel discovery
• Responding to a West Virginia complaint
• West Virginia summary judgment
• West Virginia voluntary dismissal

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