Utah Court Rules – Published for Comment
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Posted: June 24, 2014
URCP 026. General provisions governing disclosure and discovery. Amend. Refers the person requesting extraordinary discovery to rule 37.
URCP 045. Subpoena. Amend. Refers the person objecting to a subpoena or requesting an order to compel to rule 37. Requires that a third-party subpoena be served on the other parties.
My concern is that the proposed change to Rule 26 will limit the discretion of the judge to allow additional discovery. The reference to Rule 37 will require some type of misconduct or non-disclosure by the non-moving party. There are situations when additional discovery is necessary despite full disclosure by the adverse party. I see no benefit in taking the discretion away from the judge to allow additional discovery if he or she is convinced the circumstances warrant it.
I think that the proposed change to Rule 45(b)(3) is helpful in that it requires prior service of the actual subpoena itself before it is issued. In my experience, I am frequently served with a notice of intent to subpoena from various individuals or entities, but I am still left wanting to know the precise scope of the subpoena.
My concern with this subsection, (Rule 45(b)(3)), is that while it clearly requires “delivery” or “actual notice before serving the subpoena,” the rule remains silent on how much notice is appropriate. Some attorneys give 5 days notice; others 10 days; and still others 14 days; but what about instances when less than even 5 days is given? I don’t think that the rule is satisfied if notice is given on the eve of issuing the subpoenas, but the rule doesn’t necessarily say that either.
I think that it’s noteworthy that the local rules for the federal district court here in Utah have addressed this issue by requiring at least 5 days’ notice, (8 days if the notice is served by mail), under DUCivR 45-1 when serving subpoenas.
It seems that the recent changes in Utah’s rules of civil procedure have been generally aimed at more closely mirroring the federal rules. Wouldn’t that goal also be accomplished by including a provision into Utah’s rules that addresses how much notice is required before issuing subpoenas? I think it would certainly be helpful.