a Form. Every subpoena shall
1 state the name of the court from which it is issued; and
2 state the title of the action, the name of the court in which it is pending, and its court file number, if one has been assigned; and
3 command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing, or sampling of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
4 contain a notice to the person to whom it is directed advising that person of the right to reimbursement for certain expenses pursuant to Rule 45.03(d), and the right to have the amount of those expenses determined prior to compliance with the subpoena.
A command to produce evidence or to permit inspection, copying, testing, or sampling may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.
b Subpoenas Issued In Name of Court. A subpoena commanding attendance at a trial or hearing, for attendance at a deposition, or for production or inspection, copying, testing, or sampling shall be issued in the name of the court where the action is pending.
c Issuance by Court or by Attorney. The court administrator shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of the court where the action is pending.
d Subpoena for Taking Deposition, Action Pending in Foreign Jurisdiction. A subpoena for attendance at a deposition to be taken in Minnesota for an action pending in a foreign jurisdiction may be issued by the court administrator or by an attorney admitted to practice in Minnesota in the name of the court for the county in which the deposition will be taken, provided that the deposition is allowed and has been properly noticed under the law of the jurisdiction in which the action is pending. The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, electronically stored information, or tangible things that constitute or contain matters within the scope of the examination permitted by the law of the jurisdiction in which the action is pending, but in that event, the subpoena will be subject to the provisions of Rules 26.03 and 45.03(b)(2).
e Notice to Parties. Any use of a subpoena, other than to compel attendance at a trial, without prior notice to all parties to the action, is improper and may subject the party or attorney issuing it, or on whose behalf it was issued, to sanctions.
a Who May Serve and Method of Service; Timing of Notice. 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 by delivering a copy thereof to such person or by leaving a copy at the person’s usual place of abode with some person of suitable age and discretion then residing therein and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state of Minnesota or an officer or agency thereof, fees and mileage need not be tendered. A subpoena commanding production for inspection, copying, testing, or sampling of designated books, papers, documents, or electronically stored information, tangible things, or inspection of premises, must be served on the subject of the subpoena, and notice of the required production must be served in the manner prescribed by Rule 5.02 on each party to the action, at least 7 days before the required production.
b Statewide Service. Subject to Rule 45.03(c)(1)(B), a subpoena may be served at any place within the state of Minnesota.
c Proof of Service. Proof of service when necessary shall be made by filing with the court administrator of the court on behalf of which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
d Compensation of Subpoenaed Person. The party serving the subpoena shall make arrangements for reasonable compensation as required under Rule 45.03(d) prior to the time of commanded production or the taking of such testimony. If such reasonable arrangements are not made, the person subpoenaed may proceed under Rule 45.03(c) or 45.03(b)(2). The party serving the subpoena may, if objection has been made, move upon notice to the deponent and all parties for an order directing the amount of such compensation at any time before the taking of the deposition. Any amounts paid shall be subject to the provisions of Rule 54.04.
45.03 Protection of Persons Subject to Subpoena
a Requirement to Avoid Undue Burden. 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 on behalf of which the subpoena was issued 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.
b Subpoena for Document Production Without Deposition.
1 A person commanded to produce and permit inspection, copying, testing, or sampling of designated electronically stored information, books, papers, documents, or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial.
2 Subject to Rule 45.04(b), a person commanded to produce and permit inspection, copying, testing, or sampling 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 producing any or all of the designated materials or inspection of the premises—or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production, inspection, copying, testing, or sampling. 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, copying, testing, or sampling commanded.
c Motion to Quash or Modify Subpoena.
1 On timely motion, the court on behalf of which a subpoena was issued shall quash or modify the subpoena if it
A fails to allow reasonable time for compliance;
B requires a person who is not a party or an officer of a party to travel to a place outside the county where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of Rule 45.03(c)(2)(C), such a person may in order to attend trial be commanded to travel from any such place within the state of Minnesota, or
C requires disclosure of privileged or other protected matter and no exception or waiver applies, or
D subjects a person to undue burden.
2 If a subpoena
A requires disclosure of a trade secret or other confidential research, development, or commercial information, or
B requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or
C requires a person who is not a party or an officer of a party to incur substantial expense to travel outside the county where that person resides, is employed or regularly transacts business in person to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
d Compensation of Certain Non-Party Witnesses. Subject to the provisions of Rules 26.02 and 26.03, a witness who is not a party to the action or an employee of a party [except a person appointed pursuant to Rule 30.02(f)] and who is required to give testimony or produce documents relating to a profession, business, or trade, or relating to knowledge, information, or facts obtained as a result of activities in such profession, business, or trade, is entitled to reasonable compensation for the time and expense involved in preparing for and giving such testimony or producing such documents.
45.04 Duties in Responding to Subpoena
a Form of Production; Participation of Other Parties; Rescheduling.
1 A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
2 If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.
3 A person responding to a subpoena need not produce the same electronically stored information in more than one form.
4 A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to
compel discovery or to quash, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26.02(b)(3). The court may specify conditions for the discovery.
5 The party issuing a subpoena for production or inspection shall make available to all parties any books, papers, documents or electronically stored information obtained from any person following issuance of a subpoena to that person. If production or inspection is made at a time or place, in a manner, or to an extent and scope, different from that commanded in the subpoena, the party issuing the subpoena must give notice to all parties to the action at least 7 days in advance of the rescheduled production. Any party may attend and participate in any noticed or rescheduled production or inspection and may also require production or inspection within the scope of the subpoena for inspection or copying.
b Claims of Privilege.
1 When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the 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.
2 If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.
3 For depositions taken in Minnesota under Rule 45.06 in connection with litigation pending in another jurisdiction, the procedure for assertion of claims of privilege is governed by Rule 45.04(b). The law of privilege, or other questions of substantive law, to be applied in such a deposition, depends on the application of Minnesota’s conflict-of-law principles.
45.05 Contempt Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court on behalf of which the subpoena was issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by Rule 45.03(c)(1)(B).
45.06 Interstate Depositions and Discovery
a Definitions. In Rule 45.06:
1 “Foreign jurisdiction” means a state other than this state.
2 “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.
3 “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
4 “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, or any territory or insular possession subject to the jurisdiction of the United States.
5 “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:
A attend and give testimony at a deposition;
B produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person; or
C permit inspection of premises under the control of the person.
b Issuance of Subpoena.
1 To request issuance of a subpoena by the court administrator under this section, a party must submit a foreign subpoena to the district court
administrator of the court in the county in which discovery is sought to be conducted in this state. A request for the issuance of a subpoena under this act does not constitute an appearance in a proceeding pursuant to Rule 5.01 of these rules, but does subject the filer to the jurisdiction of the court and to Minnesota law and rules, including the Minnesota Rules of Professional Conduct. Alternatively, an attorney admitted to practice in Minnesota as an officer of the court may issue and sign a subpoena pursuant to this rule and Rule 45.01(c).
2 A district court administrator in this state, upon submission of a foreign subpoena, shall, in accordance with that court’s procedure, promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.
3 A subpoena under Rule 45.06(b) (1) or (2) must:
A incorporate the terms used in the foreign subpoena; and
B contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
c Service of Subpoena. A subpoena issued under Rule 45.06(b) must be served in compliance with Rule 45.02 of these rules.
d Deposition, Production, and Inspection. All Minnesota rules and statutes applicable to compliance with subpoenas to attend and give testimony, produce designated books, documents, records, electronically stored information, or tangible things, or permit inspection of premises apply to subpoenas issued under Rule 45.06(b). Resolution of substantive issues about privilege, competence of a witness, or the obligation of a witness to answer particular questions depends on the application of Minnesota’s conflict-of-law principles under Rule 45.04(b)(3).
e Application To Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued by a district court administrator under Rule 45.06(b) must comply with the rules and statutes of this state and be submitted to the district court in the county in which discovery is to be conducted.
Advisory Committee Comment—2021 Amendments
Rule 45.04 is amended to clarify the application of privilege law in depositions taken under Rule 45.06 for depositions taken for litigation pending in a jurisdiction
outside of Minnesota. The procedure for obtaining or issuance of a subpoena under Rule 45.06 is governed by Minnesota law, but the rule is amended to make it clear that in situations involving a conflict of substantive law, such as whether a question is governed by a recognized privilege, resolution depends on the application of Minnesota’s conflict- of-law principles. This analysis might, in some cases, require the application of another jurisdiction’s substantive law. See, e.g., Milkovich v. Saari, 295 Minn. 155, 161–71, 203 N.W.2d 408, 414–17 (1973); see generally William B. Danforth, Developments in the Minnesota Law of Conflict of Laws, 8 Wm. Mitchell L. Rev. 785 (1982). Rule 45.06 itself is amended to provide for the issuance of a subpoena by a Minnesota attorney of record in a case, obviating issuance of the subpoena by the court administrator. This procedure is already allowed for subpoenas in cases pending in Minnesota state courts. The rule does not modify in any way the requirements for issuance of a subpoena; it merely allows a Minnesota attorney to sign and issue it if those requirements are met.