Neb. Sup. Ct. R. 6-334(A)

As amended through November 11, 2024

Section 6-334(A) - [Effective 1/1/2025] Subpoenas commanding nonparties to produce documents, electronically stored information, and tangible things or to allow entry onto land, for inspection and other purposes

(a) In General.

(1) Scope of Subpoena. A party may serve a subpoena that commands a person to produce and permit the party or its representative to do the following at a specified time and place:

(A) inspect, copy, test, or sample the following items that are within the scope of Rule 26(b) and in the person's possession, custody, or control:

(i) any designated documents or electronically stored information- including writings, drawings, graphs, charts, photographs, sound recordings, images, and other data or data compilations - stored in any medium from which information can be obtained either directly or, if necessary, after translation by the responding person into a reasonably usable form; or

(ii) any designated tangible things; or

(B) permit entry onto designated land or other property possessed or controlled by the person when such entry is within the scope of Rule 26(b) so that the party may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.

(2) Option to Provide Copies. The subpoena may give the person the option of (A) producing documents or electronically stored information for inspection or (B) providing copies of the documents or information by the date specified in the subpoena. If the subpoena gives the person such an option, the person may condition preparation of the copies on advance payment of the reasonable cost of preparing the copies.

(3) Subpoena for Deposition and Documents. Pursuant to Neb. Rev. Stat. § 25-1224, the subpoena may command the person to appear and testify at a deposition at the time and place specified for production. Such a subpoena must comply with this rule and contain the information that the statutes and Rule 30(b)(1)(E) require for deposition subpoenas. It must also contain a statement of the method for recording the testimony.

(b) Prior Notice to Parties.

(1) A party who intends to serve a subpoena pursuant to this rule must serve a written notice on every other party at least 14 days before issuance of the subpoena. Leave of court or a stipulation of the parties is required only if a plaintiff seeks to serve the notice within 30 days after service of the summons and no defending party has served such a notice.

(2) The notice must state the name and address of the person to whom the subpoena will be directed, the date on or after which the subpoena will be issued, the time and place of the inspection or entry, and whether the person will be given the option of providing the party with copies of the designated documents or electronically stored information. The notice must also contain a designation of (i) the documents or electronically stored information to be produced or (ii) the land or other property to be entered.

(c) Objections; Request. Before the subpoena is issued, any party may serve a written objection to the subpoena on all the other parties, including the party who gave written notice of the intent to serve the subpoena. If the subpoena is for entry onto land, any party may request that it be named in the subpoena as also entering at the same time and place.

(1) Objection to Production or Entry. A party may object to one or more of the designations in the subpoena on the grounds that the designated production or entry is (i) protected by a privilege, in which case the party must identify the applicable privilege, (ii) not within the scope of Rule 26(b), or (iii) would be unreasonably intrusive or oppressive to the party. The objection must specify the designated production or entry to which the objection is directed and must also specify the grounds for the objection.

(2) Unless the party withdraws the objection or the court orders otherwise, a subpoena may not command the production of any items or the entry onto any land to which an objection has been made pursuant to subpart (1) of this rule.

(3) The party who intends to serve the subpoena may move for an order on the objection. The motion must be filed in the court where the action is pending and served on the other parties. The court may sustain or overrule the objection in whole or in part, order that discovery proceed in a different manner, or enter a protective order pursuant to Rule 26(d). The court may also award expenses as authorized in Rule 37(a)(5).

(d) Issuance; Contents; Form of Production; Service.

(1) Issuance. A subpoena may be issued pursuant to this rule by either the clerk of the court where the action is pending upon the request of a party or by an attorney on behalf of the court if the attorney is authorized to practice in the court.

(2) Contents. A subpoena issued pursuant to this rule must:

(A) state the name of the court from which it is issued, the title of the action, and the case number;

(B) command the person to whom it is directed to produce the designated documents, electronically stored information, or things or permit the designated entry;

(C) if for production, specify the time and place for the production or give the person the option of producing the designated documents or electronically stored information for inspection at the specified time and place or providing copies of them by the specified date;

(D) if for entry, specify the time and place for the designated entry and state the name of each party entering;

(E) state the name of each party who was given written notice that the subpoena would be issued and the date on which the party was given notice; and

(F) include this rule, either in the text of the subpoena or as an attachment to the subpoena.

(3) Form of Production. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(4) Reasonable Particularity. The designations in the subpoena must describe the documents, electronically stored information, or items with reasonable particularity.

(5) Service on the Person; Time; Return of Service. A subpoena issued pursuant to this rule must be served on the person to whom it is directed no less than 14 days before the time specified for production or entry. The subpoena may be served by any person who is authorized by Neb. Rev. Stat. § 25-1223(9) to serve a subpoena. Service must be made in the manner authorized by Neb. Rev. Stat. § 25-1226(1) for service of a deposition subpoena and the return of service must be made in the manner specified by Neb. Rev. Stat. § 25-1228(2).

(6) Service on the Other Parties. The party who serves a subpoena on the person pursuant to this rule must also serve a copy of the subpoena on the other parties no less than 14 days before the time specified for production or entry.

(7) Protective Order. After a subpoena has been issued, any party or the person served with a subpoena may move for a protective order pursuant to Rule 26(d).

(8) Avoiding Undue Burden or Expense. A party or an attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court by which the subpoena was issued must enforce this duty and impose an appropriate sanction - which may include lost earnings and reasonable attorney fees - on a party or attorney who fails to comply.

(e) Objections; Motions. If a person served with a subpoena believes that compliance with the subpoena should not be required in whole or in part, the person may serve an objection to the subpoena or file a motion to quash or modify the subpoena.

(1) Objection.

(A) Making an Objection. A person served with a subpoena may serve on the party serving the subpoena an objection to producing any or all of the designated items, to producing electronically stored information in the specified form or forms, or to allowing the designated entry. The objection must be in writing and served within 14 days after the subpoena was served. The party on whom the objection was served must promptly serve a copy of the objection on all the other parties to the action.

(B) Waiver of Objection. The objection must state the grounds for the objection and must also state with specificity why the subpoena is objectionable on those grounds. Any ground not stated in a timely objection is waived unless (i) the objection is based on a privilege or the work product protection or (ii) the court, for good cause, excuses the failure.

(C) Ruling on an Objection. If the person serves an objection, the person is not required to produce the objected-to items or to permit entry unless a court orders otherwise. The party serving the subpoena may file a motion in the court where the action is pending for an order overruling the objection and compelling compliance with the subpoena. An order compelling compliance must protect a person who is neither a party nor a party's officer from significant expense resulting from compliance.

(2) Motion to Quash. A person served with a subpoena may file a motion to quash or modify the subpoena. The motion must be filed in the court where the action is pending before the time specified for compliance or within 14 days after the subpoena was served, whichever is earlier, and must also be served on all the parties. The court must grant the motion to quash or modify if the subpoena:

(A) fails to allow a reasonable time for compliance;

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

(C) subjects the person to undue burden.

(f) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information.

(A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the subpoena.

(B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person must produce it in a form or forms in which it is ordinarily maintained or in a reasonably useable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The person need not produce the same electronically stored information in more than one form.

(2) Claiming Privilege or Protection. When a person withholds subpoenaed information by claiming that the information is privileged or subject to protection as work product, the party must:

(A) expressly make the claim; and

(B) describe the nature of the documents, communications, or tangible not produced - and do so in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(g) Production of Privileged or Protected Documents. Rule 26(b)(5) applies to documents or electronically stored information produced in response to a subpoena.

(h) Duplicates. If the party who served the subpoena creates or obtains copies of any items from the person served with the subpoena, the party must make duplicate copies available to any other party who requests them and pays in advance the reasonable cost of making the duplicates.

Neb. Sup. Ct. R. 6-334(A)

Rule 34A and Comment adopted December 12, 2001; Rule 34A(c)(2)(B) amended May 19, 2004; Rule 34A(a)(1)(A), 34A(a)(2), 34A(b)(1), 34A(c)(2) (A-B) amended June 4, 2008, effective 6/18/2008. Renumbered and codified as § 6-334(A), effective 7/18/2008; amended November 13, 2024, effective 1/1/2025.

COMMENTS TO § 6-334(A)

[1] Section 6-334(A) specifies the procedures for obtaining documents and other tangible things from a nonparty as well as for entering onto land possessed or controlled by a nonparty. Most of the rule was promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1273. The provisions on subpoenas duces tecum were promulgated pursuant to the authority granted to the Supreme Court by Neb. Rev. Stat. § 25-1224(2). The rule was substantially reorganized and rewritten in 2024 to make it more comprehensive and readable.

[2] Subpart (a)(3) provides that a subpoena duces tecum must comply with § 6-334(A). Because a subpoena duces tecum must comply with the rule, a party cannot circumvent the prior notice provisions of subpart (b) by issuing a subpoena duces tecum instead of a document subpoena. Subpart (a)(3) also provides that a subpoena duces tecum must contain the interpreter statements required by § 6-330(b)(1)(E), the information required by Neb. Rev. Stat. § 25-1223(4), and a statement of the recording method.

[3] The 2024 Amendments incorporated the current statutory requirements for issuing and serving subpoenas. The Amendments also harmonized much of the wording and many of the procedures in §§ 6-334 and 6-334(A). Like § 6-334, § 6-334(A) as amended provides that the documents sought must be described with reasonable particularity (subpart (d)(4)), contains provisions on the form in which electronically stored information should be produced (subparts (d)(3) and (e)(1)(a)), specifies the information that must be provided when privileged or protected documents are withheld (subpart(f)(2)), and states that § 6-326(b)(5) applies when privileged or protected documents are inadvertently produced (subpart (g)).

[4] Although both rules give the recipient the option of producing copies of the documents instead of making the documents available for inspection and copying, they do so in different ways. Under § 6-334(A)(a)(2), the recipient has the option only if the subpoena gives the recipient the option. Under § 6-334, the recipient always has the option. See § 6-334(c)(2)(B). The reason for the difference is that a subpoena is a command from the court and a request is just that, a request. If the recipient of a subpoena has an option on how to comply, that option should be stated in the subpoena.

[5] The rule originally provided that if any party objected to the issuance of a subpoena that gave the recipient the option of producing the documents, the subpoena could not be issued until the parties agreed on the method for producing the documents. The provision was deleted by the 2024 Amendments.

[6] The 2024 Amendments reset most time periods of less 30 days in multiples of seven. The minimum time period for parties and subpoena recipients to serve objections is now 14 days rather than 10 days.

[7] Both § 6-334 and § 6-334(A) provide that objections are waived if they are not timely made. There are differences, however, because the response time for a subpoena is shorter than the response time for a request. Section 6-334(A)(e)(1)(A) provides that objections to a subpoena must be made in writing within 14 days after the subpoena is served. The failure to make a timely objection waives the objection unless (1) the court finds that there was good cause for the failure or (2) the objection is based on a privilege or the work product protection.

[8] Unlike objections based on relevance or burden, objections based on privileges and the work product protection are usually document-specific objections that require an actual review of the individual documents. Subpoena recipients may not be able to complete their review of the documents and provide the information required by subpart (f)(2) within 14 days.

[9] The judge presiding over a case is in the best position to rule on discovery motions in the case. Therefore, the rule requires that motions related to the issuance and enforcement of a subpoena must be filed in the court in which the action is pending. Those include motions for a ruling on an objection to the issuance of a subpoena (subpart (b)(3)), motions to compel compliance with the subpoena (subpart (e)(1)(C)), and motions to quash or modify the subpoena (subpart (e)(2)).