Wyoming subpoenas: an out-of-county witness gets paid after the trial, at the state per diem

Wyoming's Rule 45 reflects a state where the nearest courthouse can be a long drive. Two provisions follow from that: a deposition can only be held where the witness already is, and a witness dragged in from another county is paid a per diem for the travel — afterwards, not up front.

The out-of-county witness allowance

Rule 45(b)(1) adds an obligation most states leave to a fee schedule:

The party subpoenaing any witness residing in a county other than that in which the action is pending shall pay to such witness, after the hearing or trial, the statutory per diem allowance for state employees for each day or part thereof necessarily spent by such witness in traveling to and from the court and in attendance at the hearing or trial.

Four features worth planning around.

It is triggered by county, not distance. A witness who lives in the next county over is inside it.

It is paid after the hearing or trial, so it is a liability rather than a tender — but it is not optional, and it accrues whether or not the witness asks.

It covers travel days as well as attendance, and "each day or part thereof."

The rate is the state employee per diem, set outside the rule.

Where a witness can be made to appear

Rule 45(b)(4) restricts depositions to the witness's own ground:

A person commended by subpoena to appear at a deposition may be required to attend only in the county wherein that person resides or is employed or regularly transacts business in person, or at such other convenient place as is fixed by an order of court. A nonresident of the state may be required to attend only in the county wherein that nonresident is served with a subpoena or at such other convenient place as is fixed by an order of court.

A deposition of a Wyoming witness happens in their county unless a judge says otherwise. For a non-resident, it happens in the county where they were served.

Trial is the exception, and it is a wide one — Rule 45(b)(3) provides that a subpoena for trial or hearing "may require the person subpoenaed to appear at the trial or hearing irrespective of the place of residence of such person within the state." Statewide reach for trial; county-bound for depositions. That pairing is why the per diem provision exists.

Which court issues it

Rule 45(a)(2) routes it by the proceeding: for attendance at a trial or hearing, from the court for the district in which the action is pending; for a deposition, from the court for the district where the deposition is to be taken; and for standalone production or inspection, from the court for the district where it is to occur.

Attorneys may issue as well, and Wyoming's provision is broader than most:

An attorney as officer of the court may also issue and sign a subpoena on behalf of (A) a court in which the attorney is authorized to practice; or (B) a court for a district in which a deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court in which the attorney is authorized to practice.

Limb (B) is the useful one: an attorney can issue out of a district they do not otherwise practice in, provided the discovery relates to a case where they do.

Serving it

Rule 45(b)(1) allows service "by the sheriff, by a deputy sheriff, or by any other person who is not a party and is not less than 18 years of age." Proof of service is required "when necessary," by filing a statement of the date and manner of service and the names of those served, and "[t]he statement must be certified by the person who made the service."

Quashing: the county rule again, as a mandatory ground

Rule 45(c)(3)(A) makes the geographic limit enforceable rather than merely aspirational. On timely motion the court shall quash or modify a subpoena that:

(i) fails to allow reasonable time for compliance; (ii) requires a person who is not a party or an officer of a party to travel outside that person's county of residence or employment or a county where that person regularly transacts business in person except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held; (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iv) subjects a person to undue burden.

Note that ground (ii) protects only a person who is not a party or an officer of a party. An officer of a corporate party can be made to travel; a records custodian at an unrelated business cannot.

The trial exception appears here too, which is what makes the per diem obligation in Rule 45(b)(1) the practical counterweight: the witness must come, and the party who summoned them pays for the journey.

Rule 45(c)(3)(B) supplies the discretionary grounds — trade secrets, confidential commercial information, and an unretained expert's opinion.

The issuer's duty to limit burden

Rule 45(c)(1) requires a party or attorney responsible for issuing and serving a subpoena to take reasonable steps to avoid imposing undue burden or expense, and directs the court to enforce that duty with an appropriate sanction, which may include lost earnings and a reasonable attorney's fee.

A short checklist

Issuing one:

1. Check the witness's county. A deposition can only be noticed where they live, work or regularly transact business.
2. Use the trial exception where you genuinely need someone from across the state — for trial, the reach is statewide.
3. Budget the per diem for any witness from another county, payable after the hearing.
4. Issue from the right district — action, deposition or production, depending on what you command.
5. Use the attorney-issuance route in limb (B) if the discovery is in a district you do not practice in.
6. Get the server's certified statement if you may need to prove service.

Receiving one:

1. Object to a deposition outside your county unless a court order fixed the place.
2. Expect to travel for trial, wherever in Wyoming you live.
3. Claim the per diem after the hearing if you came from another county — travel days included.
4. Check who signed it, and whether that attorney had authority to issue from this district.

Where these rules live

• Wyo. R. Civ. P. 26 — Duty to Disclose; General Provisions Governing Discovery
• Wyo. R. Civ. P. 30 — Depositions by Oral Examination
• Wyo. R. Civ. P. 34 — Producing Documents and Electronically Stored Information
• Wyo. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• Wyoming motion to compel discovery

This page explains what the rules say. It isn't legal advice, and the statutory per diem allowance for state employees is set outside these rules.