§45.6 Analysis

• Jurisdiction: Washington

§45.6ANALYSIS

Procedures for arranging nonparty depositions with subpoenas are set forth in CR 45(e). CR 45(f) sets forth the procedures with respect to subpoenas for trial or a hearing.

(1)Compelling a nonparty witness to attend trial

A nonparty witness must be served with a subpoena to compel the nonparty's attendance at trial or a court hearing.

(a)Issuance of a trial subpoena

RCW 5.56.010 requires that a party desiring the attendance at trial of a witness residing outside of the county in which the trial, action, or proceeding is pending, or more than 20 miles of the place where such court is located, must apply ex parte to such court, or to the judge, commissioner, referee, or clerk thereof for the issuance of a trial subpoena. If the witness resides within the county in which the trial, action, or proceeding is pending and within 20 miles of the place where such court is located, the trial subpoena can be signed by the attorney of record and served on the witness without court action. See id.; CR 45(a)(4). Alternatively, the subpoena may be issued by the court or the clerk of the court in response to a praecipe. CR 45(a)(4).

Only one subpoena need be issued to a witness to secure his or her trial testimony, regardless of how many times the witness is required to appear. State v. Tatum, 74 Wn.App. 81, 85, 871 P.2d 1123, review denied, 125 Wn.2d 1002 (1994). The witness has a continuing duty to appear until the court or the summoning party has discharged the witness. Id. The continuance of the trial date does not require the issuance of a new subpoena to the witness. Id.

(b)Service of subpoena on nonparty witness for trial

Any suitable person over the age of 18 years may serve a subpoena by giving it to the witness or leaving a copy at the place of the witness's abode with some person of suitable age and discretion then residing therein. CR 45(b)(1). See §45.4(2), above, for differences with Fed. R. Civ. P. 45 on this issue.

If the subpoena is not served properly, it has no legal significance and the witness's attendance cannot be compelled. State v. Adamski, 111 Wn.2d 574, 578, 761P.2d621 (1988). In Adamski, the witness resided in an institution that received legal papers in the mail and then distributed them to residents. The court held that this practice could not substitute for the service requirements outlined in CR 45 and invalidated the trial subpoena to the witness.

Caveat: If you contend that service was improper, make sure to assert that objection in conjunction with moving to quash under CR 45(c)(3) or for a protective order under CR 26(c).

If a party does not know a witness's address, the party need not serve the witness with a trial subpoena for purposes of establishing the witness's unavailability to testify live at trial. State v. DeSantiago, 149 Wn.2d 402, 412-13, 68 P.3d 1065 (2003).

(c)Geographical reach of a trial subpoena

RCW 5.56.010 states that a trial subpoena may be effectively served in any part of the state upon any person, compelling the person to attend as a witness before any court of record, judge, commissioner, or referee.

A subpoena cannot compel the attendance of a nonresident witness who is not physically present within the state. State ex rel. Onishi v. Superior Court, 30 Wn.2d 348, 356, 191 P.2d 703 (1948). A subpoena remains effective only within the confines of the state's borders. A nonresident may effectively be served while physically present within the jurisdiction from which the subpoena is issued. CR 45(e)(2).

Practice Tip: If a problem exists in obtaining service of trial subpoenas for out-of-state witnesses, depose out-of-state witnesses under CR 45 and then use their testimony at trial pursuant to CR 32.

(d)Witness fees for trial

CR 45(f)( 1) addresses trial witness fees and allowances through a reference to RCW 5.56.010. That statute provides in relevant part:

No such person shall be compelled to attend as a witness in any civil action or proceeding unless the fees be paid or tendered him or her which are allowed by law for one day's attendance as a witness and for traveling to and returning from the place where he or she is required to attend, together with any allowance for meals and lodging theretofore fixed as specified herein: PROVIDED, That such fees be demanded by any witness residing within the same county where such court of record, judge, commissioner, or referee is located, or within twenty miles of the place where such court is located, at the time of service of the subpoena ....

RCW 5.56.010.

With respect to a witness residing outside the county in which the court action or proceeding is pending, or more than 20 miles from the place where such court is located, RCW 5.56.010 requires the court or clerk, at the time that it issues a trial subpoena for such witness, to

fix without notice an allowance for meals and lodging, if any to be allowed, together with necessary travel expenses, and the amounts so fixed shall be endorsed upon the subpoena and tendered to such witness at the time of the service of the subpoena: PROVIDED FURTHER, That the court shall fix and allow at or after trial such additional amounts for meals, lodging, and travel as it may deem reasonable for the attendance of such witness.

See Form 45-5 on the CD accompanying this deskbook for a sample form for obtaining an order setting witness fees.

Caveat: RCW 5.56.010 contains a contradiction with respect to fees, including travel expenses, meals, and lodging, for a trial witness who (1) resides within the county where the trial is pending but more than 20 miles from the courthouse or (2) resides within 20 miles of the courthouse but outside the county where the trial is pending. The first proviso of the statute states that appearance, travel, meal, and lodging fees allowed by law must be provided to such a witness only if the witness demands them at the time the subpoena is served. The second proviso of the statute states that the court must fix the travel expenses, meals, and lodging payable to such a witness, and that those amounts must be tendered to the witness at the time the subpoena is served.

CR 45(f)(2) provides that, with respect to trial subpoenas, "[wjitness fees will not be allowed any witness after the day on which the witness' testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact."

(2)Compelling attendance of a nonparty deposition witness

There is no way to compel the attendance of a nonparty witness at a deposition other than by a properly issued subpoena.

(a)Issuance of a deposition subpoena

A subpoena for the attendance of witnesses at deposition is issued by the attorney of record. This means that the attorney of record has the authority to sign the subpoena and have it served on a witness without court action. CR 45(a)(4). A deposition subpoena may also be issued by court or the clerk of the court in response to a praecipe. Id.

(b)Service of a subpoena on nonparty deposition witness

The same rules for service of a trial subpoena apply to service of a deposition subpoena. See §45.6(l)(b), above.

Following the 2007 amendments to CR45, a notice of deposition is no longer required for a subpoena for documents or to inspect premises. A subpoena to produce evidence or inspect documents may still be joined with a notice of deposition, however. CR 45(a)(3).

(c)Geographical reach of a deposition subpoena

CR 45(e)(2) limits the geographical reach of...