§45.7 Significant Authorities

• Jurisdiction: Washington

§45.7SIGNIFICANT AUTHORITIES

The following section summarizes significant authorities in Washington regarding the use and enforceability of subpoenas.

(1)Effectiveness of subpoena

Until 2007, CR 45 did not permit the issuance of a subpoena for production or inspection of books, documents, or tangible things, or to permit inspection of premises, independent of a command to appear at a deposition hearing or trial. In re Bet. of West, 171 Wn.2d 383, 409, 256 P.3d 302 (2011).

Under CR 45, there is no substantive difference between a subpoena issued by a court and one issued by the attorney of record for the party on whose behalf the witness is asked to appear. In re J.F., 109 Wn.App. 718, 733, 37 P.3d 1227 (2001).

A subpoena ordinarily imposes upon the summoned party a continuing obligation to appear until discharged by the court or the summoning party. State v. Tatum, 74 Wn.App. 81, 85,871 P.2d 1123, review denied, 125 Wn.2d 1002 (1994).

The failure to serve a subpoena in conformity with the rules "renders such service a nullity." State v. Adamski, 111 Wn.2d 574, 578, 761 P.2d 621 (1988). If service requirements have not been met, the subpoena cannot be said to have been issued. Id.

(2)Service of subpoena

A documents subpoena must be served on all other parties to provide the other parties with a meaningful opportunity to object. State v. White, 126 Wn.App. 131, 134-35, 107 P.3d 753, review denied, 155 Wn.2d 1023 (2005).

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

Due diligence is not satisfied when a party attempts to serve a subpoena upon a witness by a method not allowed under CR 45. State v. Duggins, 121 Wn.2d 524, 852 P.2d 294 (1993).

Due diligence is not satisfied when a party fails to properly serve a new subpoena on the witness after the original trial date was continued and the subpoenaing party did not seek a continuance of the second trial date to obtain the witness's appearance. State v. Jackman, 113 Wn.2d 772, 780-81, 783 P.2d 580 (1989).

Due diligence requires the proper issuance and service of subpoenas to essential witnesses. Adamski, 111 Wn.2d at 578.

A subpoena cannot have extraterritorial effect. A subpoena cannot compel the attendance of a witness who is a nonresident of, and who is absent from, the state. State ex rel. Onishi v. Superior Court, 30 Wn.2d 348, 191P.2d703 (1948).

(3)Undue burden as a basis to quash or modify a subpoena

The court refused to enforce six subpoenas duces tecum that would have required a nonparty to accomplish the following: assign two employees to spend a month reviewing 462 boxes of documents; have its information systems...