4-503

[For use with Magistrate Court Rule 2-502 and

Metropolitan Court Rule 3-502]

STATE OF NEW MEXICO

COUNTY OF _______________

___________________ COURT

No. __________

________________________________, Plaintiff

________________________________, Defendant

SUBPOENA¹

SUBPOENA FOR

[ ]APPEARANCE OF PERSON FOR [ ] TRIAL [ ] HEARING

[ ]TO PRODUCE DOCUMENTS OR OBJECTS AT A HEARING OR TRIAL²

[ ]INSPECTION OF PREMISES OF A PARTY²

TO: _____________________________________________________

YOU ARE HEREBY COMMANDED TO APPEAR as follows:

Place: _________________________________________________

Before Judge: _______________________________________

Date: ______________, ____. Time: ______ (a.m.) (p.m.)

to:

[ ] testify at trial

[ ] produce the following described books, documents or tangible things:

________________________________________________________________

_______________________________________________________________.

[ ] permit the inspection of the premises of a party located at: ___________________________________ (address).

YOU ARE ALSO COMMANDED to bring with you the following: (describe document or objects to be produced) ___________________________________________

______________________________________________________________________

____________________________________________________.

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

_______________________, _____ (date).

__________________________³

Judge, clerk or attorney

RETURN FOR COMPLETION BY SHERIFF OR DEPUTY⁴

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, the statutory witness fee and mileage in the amount of $___________.

____________________________________

Deputy sheriff

RETURN FOR COMPLETION BY OTHER PERSON MAKING SERVICE⁴

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 $___________.

_____________________________________

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

CERTIFICATE OF SERVICE BY ATTORNEY⁴

I certify that I caused a copy of this subpoena to be served on the following persons or entities by (delivery) (mail) on this ____ day of ______________, _____.

(1) __________________________________________

(Name of party)

__________________________________________

(Address)

(2) __________________________________________

(Name of party)

__________________________________________

(Address)

_______________________________

Attorney

_______________________________

Signature

_______________________________

Date of signature

TO BE PRINTED ON EACH SUBPOENA

1. If a person's attendance is commanded, one full day's per diem must be tendered with the subpoena.

2. If a person is ordered to produce books, documents, or tangible things in the person's possession for a hearing or trial, the person, unless ordered to personally appear, may have a custodian of the books, documents or tangible things to the hearing or trial produce them for trial. If a party is ordered to permit the inspection of the party's premises before trial, the party need not appear in person at the time of the inspection.

3. The judge or clerk may issue a pro se party a subpoena duces tecum ordering the production of books, documents or tangible things for trial only if the subpoena is completed prior to issuance by the court. See Rules 2-502 and 3-502 NMRA.

4. A copy of the 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.

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.

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 outside the county in which the person resides or is employed or regularly transacts business in person, except as provided below, such a person may in order to attend a hearing or trial be commanded to travel from any place within the county in which the hearing or 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.

[Approved, effective May 1, 2002; as amended, effective 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.