4-505

[For use with District Court

Civil Rule 1-045 NMRA]

STATE OF NEW MEXICO

COUNTY OF ________________________

_______________ JUDICIAL DISTRICT

No. ____________

_____________________________, Plaintiff

v.

_____________________________, Defendant

SUBPOENA¹

SUBPOENA FOR APPEARANCE OF PERSON FOR²

[ ] DEPOSITION [ ] TRIAL

TO:     _____________________________________________________

YOU ARE HEREBY COMMANDED TO APPEAR as follows:

Place:  ________________________________________________

Date:   _____________ , _____ Time: __________ (a.m.) (p.m.)

to:

[ ]        testify at the taking of a deposition in the above case.

[ ]        testify at trial.

YOU ARE ALSO COMMANDED to bring with you the following document(s) or object(s) _____________________________________________________

______________________________________________________________

IF YOU DO NOT COMPLY WITH THIS SUBPOENA you may be held in contempt of court and punished by fine or imprisonment.

__________________________, _____.

__________________________

Judge, clerk or attorney

RETURN FOR COMPLETION BY SHERIFF OR DEPUTY

I certify that on the _____ day of _________________, ______, in _________________ County, I served this subpoena on ______________________________ by delivering to the person named a copy of the subpoena, a witness fee in the amount of ____________ and mileage in the amount of $___________³.

                                                            ____________________________________

                                                            Deputy sheriff

RETURN FOR COMPLETION BY OTHER PERSON

MAKING SERVICE

I, being duly sworn, on oath say that I am over the age of eighteen (18) years and not a party to this lawsuit, and that on the _____ day of _______________________ , ______, in ________________ County, I served this subpoena on _________________ by delivering to the person named a copy of the subpoena, the statutory witness fee and mileage in the amount of $___________³.

                                                ______________________________________

Person making service

SUBSCRIBED AND SWORN to before me this _____ day of _______________________, ______ (date).

                                                _________________________________

                                                Judge, notary or other officer

                                                authorized to administer oaths

THIS SUBPOENA issued by or at request of:

________________________________

Name of attorney of party

________________________________

Address

________________________________

Telephone

TO BE PRINTED ON EACH SUBPOENA

1.         This subpoena must be served on each party in the manner provided by Rule 1-005 NMRA. If service is by a party, an affidavit of service must be used instead of a certificate of service.

2.         A command to produce evidence or to permit inspection may be joined with a command to appear for a deposition or trial.

3.         If a person's attendance is commanded, one full day's per diem must be tendered with the subpoena, unless the subpoena is issued on behalf of the state or an officer or agency thereof. See Section 38-6-4 NMSA 1978 for per diem and mileage for witnesses. See Paragraph A of Section 10-8-4 NMSA 1978 for per diem and mileage rates for nonsalaried public officers. Mileage must also be tendered at the time of service of the subpoena as provided by the Per Diem and Mileage Act. Payment of per diem and mileage for subpoenas issued by the state is made pursuant to regulations of the Administrative Office of the Courts. See Section 34-9-11 NMSA 1978 for payments from the jury and witness fee fund.

PROTECTION OF PERSONS SUBJECT TO SUBPOENAS

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.

Subject to Subparagraph (2) of Paragraph D below, a person commanded to produce and permit inspection and copying may, within fourteen (14) days after service of the subpoena or before the time specified for compliance if such time is less than fourteen (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 or within fourteen (14) days after service of the subpoena may file a motion to quash the subpoena and serve the motion on all parties to the action. If an objection is served or a motion to quash is filed and served on the parties, 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. 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. 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.

On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:

(1)       fails to allow reasonable time for compliance,

(2)       requires a person who is not a party or an officer of a party to travel to a place more than one hundred miles from the place where that person resides, is employed or regularly transacts business in person, except as provided below, 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, or

(3)       requires disclosure of privileged or other protected matter and no exception or waiver applies, or

(4)       subjects a person to undue burden.

If a subpoena:

(1)       requires disclosure of a trade secret or other confidential research, development, or commercial information, or

(2)       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

(3)       requires a person who is not a party or an officer of a party to incur substantial expense to travel,

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.

DUTIES IN RESPONDING TO SUBPOENA

(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)       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.

[Adopted, effective January 1, 1998; as amended, effective November 1, 2002; January 20, 2005.]

Compiler's notes.

Statutory witness fee. Section 38-6-4 NMSA 1978 provides for the payment of witness fees at the rate set forth in the Per Diem and Mileage Act for "nonsalaried public officers". Section 10-8-4 NMSA 1978 of the Per Diem and Mileage Act provides for per diem and mileage for nonsalaried public officers in the amount of $95.00 for each meeting attended.