§ 6-334(A).Subpoenas commanding nonparties to produce documents, electronically stored information, and tangible things or to allow entry onto land, for inspection and other purposes.

Current version (effective January 1, 2025)

COMMENTS TO § 6-334(A) [1] Section 6-334(A) specifies the procedures for obtaining documents and other tangible things from a nonparty as well as for entering onto land possessed or controlled by a nonparty. Most of the rule was promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1273. The provisions on subpoenas duces tecum were promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1224(2). The rule was substantially reorganized and rewritten in 2024 to make it more comprehensive and readable. [2] Subpart (a)(3) provides that a subpoena duces tecum must comply with § 6-334(A). Because a subpoena duces tecum must comply with the rule, a party cannot circumvent the prior notice provisions of subpart (b) by issuing a subpoena duces tecum instead of a document subpoena. Subpart (a)(3) also provides that a subpoena duces tecum must contain the interpreter statements required by § 6-330(b)(1)(E), the information required by Neb. Rev. Stat. § 25-1223(4), and a statement of the recording method. [3] The 2024 Amendments incorporated the current statutory requirements for issuing and serving subpoenas. The Amendments also harmonized much of the wording and many of the procedures in §§ 6-334 and 6-334(A). Like § 6-334, § 6-334(A) as amended provides that the documents sought must be described with reasonable particularity (subpart (d)(4)), contains provisions on the form in which electronically stored information should be produced (subparts (d)(3) and (e)(1)(a)), specifies the information that must be provided when privileged or protected documents are withheld (subpart(f)(2)), and states that § 6-326(b)(5) applies when privileged or protected documents are inadvertently produced (subpart (g)). [4] Although both rules give the recipient the option of producing copies of the documents instead of making the documents available for inspection and copying, they do so in different ways. Under § 6-334(A)(a)(2), the recipient has the option only if the subpoena gives the recipient the option. Under § 6-334, the recipient always has the option. See § 6-334(c)(2)(B). The reason for the difference is that a subpoena is a command from the court and a request is just that, a request. If the recipient of a subpoena has an option on how to comply, that option should be stated in the subpoena. [5] The rule originally provided that if any party objected to the issuance of a subpoena that gave the recipient the option of producing the documents, the subpoena could not be issued until the parties agreed on the method for producing the documents. The provision was deleted by the 2024 Amendments. [6] The 2024 Amendments reset most time periods of less 30 days in multiples of seven. The minimum time period for parties and subpoena recipients to serve objections is now 14 days rather than 10 days. [7] Both § 6-334 and § 6-334(A) provide that objections are waived if they are not timely made. There are differences, however, because the response time for a subpoena is shorter than the response time for a request. Section 6-334(A)(e)(1)(A) provides that objections to a subpoena must be made in writing within 14 days after the subpoena is served. The failure to make a timely objection waives the objection unless (1) the court finds that there was good cause for the failure or (2) the objection is based on a privilege or the work product protection. [8] Unlike objections based on relevance or burden, objections based on privileges and the work product protection are usually document-specific objections that require an actual review of the individual documents. Subpoena recipients may not be able to complete their review of the documents and provide the information required by subpart (f)(2) within 14 days. [9] The judge presiding over a case is in the best position to rule on discovery motions in the case. Therefore, the rule requires that motions related to the issuance and enforcement of a subpoena must be filed in the court in which the action is pending. Those include motions for a ruling on an objection to the issuance of a subpoena (subpart (c)(3)), motions to compel compliance with the subpoena (subpart (e)(1)(C)), and motions to quash or modify the subpoena (subpart (e)(2)).

Prior version (in effect before January 1, 2025)

COMMENT TO RULE 34A Authority to issue a subpoena pursuant to this rule is governed by Neb. Rev. Stat. § 25-1273. The procedure is similar to the practice for nonparty nondeposition discovery under Fed. R. Civ. P. 45, with certain topics such as the time of prior notice and coordination of the disclosure more specifically defined. This procedure is optional, so a party may elect to use a deposition or any other available discovery procedure instead.