Nev. R. Civ. P. 45

As amended through July 7, 2023

Rule 45 - Subpoena

(a)In General

(1) Form and Contents.

(A) Requirements-In General. Every subpoena must:

(i) state the court from which it is issued;

(ii) state the title and case number of the action and the name and address of the party or attorney responsible for issuing the subpoena;

(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or permit the inspection of premises; and

(iv) set out the text of Rule 45(c) and (d).

(B)Command to Attend a Deposition-Notice of the Recording Method. A subpoena commanding attendance at a deposition must state the method for recording the testimony.

(C)Combining or Separating a Command to Produce or to Permit Inspection; Specifying the Form for Electronically Stored Information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.

(D)Command to Produce; Included Obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding person to permit inspection, copying, testing, or sampling of the materials.

(2)Issuing Court. A subpoena must issue from the court where the action is pending.

(3)Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a party who requests it. That party must complete it before service. An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court.

(4)Prior Notice to Parties; Party Objections.

(A) Notice to Other Parties Before Service. If the subpoena commands the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, then at least 7 days before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party to permit a party to object to and seek issuance of a protective order against the subpoena during that time.

(B)Party Objections.

(i) A party who receives notice under Rule 45(a)(4)(A) that another party intends to serve a subpoena duces tecum on a third party that will require disclosure of privileged, confidential or other protected matter, to which no exception or waiver applies, may object to the subpoena by filing and serving written objections to the subpoena and a motion for a protective order.

(ii) To invoke the protections of this rule, the objecting party must file and serve written objections to the subpoena and a motion for a protective order under Rule 26(c) within 7 days after being served with notice and a copy of the subpoena under Rule 45(a)(4)(A);

(iii) In the objections and the motion, the party must specifically state the party's objections to each command to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises and demonstrate a basis for asserting that the command will require disclosure of privileged, confidential, or other protected matter and establish that no exception or waiver applies and that the objecting party is entitled to assert the claim of privilege or other protection against disclosure.

(iv) If the party objects based upon privilege, confidentiality, or other protection and timely files and serves objections and a motion for a protective order, the subpoena may not be served, unless revised to eliminate the objected-to commands, until the court that issued the subpoena has ruled on the objections and motion.

(v) The objections and motion practice are subject to the provisions of Rules 26(c) and (g) and 37(a)(5).

(b)Service.

(1) By Whom and How; Tendering Fees. Any person who is at least 18 years old and not a party may serve a subpoena, as appropriate under Rule 4.2 or 4.3. If the subpoena requires that person's attendance, the serving party must tender the fee for 1 day's attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the State or any of its officers or agencies.

(2)Service in Nevada. Subject to the provisions of Rule 45(c)(3)(A)(ii), a subpoena may be served at any place within the state.

(3)Service in Another State or Territory. A subpoena may be served in another state or territory of the United States as provided by the law of that state or territory.

(4)Service in a Foreign Country. A subpoena may be served in a foreign country as provided by the law of that country.

(5)Service of a Subpoena From Another State or Territory in Nevada. A subpoena issued by a court in another state or territory of the United States that is directed to a person in Nevada must be presented to the clerk of the district court in the county in which discovery is sought to be conducted. A subpoena issued under NRS Chapter 53 may be served under this rule.

(6)Proof of Service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement must be certified by the server.

(c)Protection of Persons Subject to Subpoena.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or 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 that issued the subpoena must enforce this duty and may impose an appropriate sanction-which may include lost earnings and reasonable attorney fees-on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required.

(i) A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

(ii) If documents, electronically stored information, or tangible things are produced to the party that issued the subpoena without an appearance at the place of production, that party must, unless otherwise stipulated by the parties or ordered by the court, promptly copy or electronically reproduce the documents or information, photograph any tangible items not subject to copying, and serve these items on every other party. The party that issued the subpoena may also serve a statement of the reasonable cost of copying, reproducing, or photographing, which a party receiving the copies, reproductions, or photographs must promptly pay. If a party disputes the cost, then the court, on motion, must determine the reasonable cost of copying the documents or information, or photographing the tangible items.

(B) Objections. A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, or a person claiming a proprietary interest in the subpoenaed documents, information, tangible things, or premises to be inspected, may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials or to inspecting the premises-or to producing electronically stored information in the form or forms requested. The person making the objection must serve it before the earlier of the time specified for compliance or 14 days after the subpoena is served. If an objection is made:

(i) the party serving the subpoena is not entitled to inspect, copy, test, or sample the materials or tangible things or to inspect the premises except by order of the court that issued the subpoena;

(ii) on notice to the parties, the objecting person, and the person commanded to produce or permit inspection, the party serving the subpoena may move the court that issued the subpoena for an order compelling production or inspection; and

(iii) if the court enters an order compelling production or inspection, the order must protect the person commanded to produce or permit inspection from significant expense resulting from compliance.

(3)Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court that issued a subpoena must quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance;

(ii) requires a person to travel to a place more than 100 miles from the place where that person resides, is employed, or regularly transacts business in person, unless the person is commanded to attend trial within Nevada;

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

(iv) subjects a person to an undue burden.

(B)When Permitted. On timely motion, the court that issued a subpoena may quash or modify the subpoena if it requires disclosing:

(i) a trade secret or other confidential research, development, or commercial information; or

(ii) a non-retained expert's opinion or information that does not describe specific occurrences in dispute and results from the expert's study that was not requested by a party.

(C)Specifying Conditions as an Alternative. In the circumstances described in Rule 45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order an appearance or production under specified conditions if the party serving the subpoena:

(i) shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(d)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 demand.

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

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

(D) Inaccessible Electronically Stored Information.The person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person responding must show that the information is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C). The court may specify conditions for the discovery.

(2)Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has; must not use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and may promptly present the information under seal to the court for a determination of the claim. The person who produced the information must preserve the information until the claim is resolved.

(e)Contempt; Costs. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court that issued the subpoena. In connection with a motion for a protective order brought under Rule 26(c), a motion to compel brought under Rule 45(c)(2)(B), or a motion to quash or modify the subpoena brought under Rule 45(c)(3), the court may consider the provisions of Rule 37(a)(5) in awarding the prevailing person reasonable expenses incurred in making or opposing the motion.

Nev. R. Civ. P. 45

Last amended effective 1/1/2005; amended effective 3/1/2019.

Advisory Committee Note-2019 Amendment

The amendments generally conform Rule 45 to FRCP 45. Rule 45(a)(4) is new and adopts a modified form of FRCP 45(a)(4). Rule 45(a)(4)(A) requires at least 7 days' notice to the other parties before serving a subpoena on the person to whom it is directed. A timely objection and a motion for a protective order asserting that the subpoena calls for disclosure of privileged, confidential, or other protected matter stays service of the subpoena until the court rules on the objection and motion. Objections and a motion for protective order not based on privilege, confidentiality or other recognized protection from disclosure such as the work product doctrine do not automatically stay service of the subpoena; the objecting party in that instance must apply to the court for relief as with any other motion under Rule 26(c).

Rule 45(c)(2)(A)(ii) is also new. It encourages prompt disclosure of materials received in response to a subpoena so that the litigation can continue, while preserving the parties' ability to dispute the costs of disclosing the materials. Rule 45(e) clarifies that a court considering a subpoena-related motion for a protective order, motion to compel, or motion to quash or modify may award Rule 37 sanctions.

Drafter's Note

2004 Amendment

Subdivision (a) is amended to conform to the 1991 amendments to subdivision (a) of the federal rule with some minor revisions to tailor the provision to practice in state court. Rule 45(a)(1) authorizes the issuance of a subpoena to compel a nonparty to produce evidence independent of any deposition or permit inspection of premises within the nonparty's possession. Rule 45(a)(3) authorizes "[a]n attorney as officer of the court" to issue and sign a subpoena on behalf of the court so long as the attorney is authorized to practice before that court.

Subdivision (b) is amended to conform to the 1991 amendments to subdivision (b) of the federal rule. Subdivision (b)(1) retains the text of former subdivision (c) with some minor changes to delete reference to the sheriff or his deputy and to limit the requirement for one day's attendance and mileage to subpoenas that command a person's attendance. The fourth sentence is new and requires service of prior notice under Rule 5 of any commanded production of documents and things or inspection of premises. Unlike its federal counterpart, this new provision in the Nevada rule requires prior notice within a specific period of time. (Pretrial notice of subpoenas for testimony at trial is governed by revised Rule 16.1(a)(3)(A).) Subdivision (b)(2) retains language formerly set forth in the second sentence of subdivision (e)(1), providing that "a subpoena may be served at any place within the state," but extends its application to subpoenas for depositions or production. Subdivision (b)(3) is new to the Nevada rule and addresses what is required to demonstrate proof of service.

Subdivision (c) is amended to conform to the 1991 amendments to the federal rule with some minor changes to reflect practice in state court. The revised provision states the rights of persons subject to subpoena. Subdivision (c)(1) addresses the duties and liabilities of a party or attorney "responsible for the issuance and service of a subpoena." Subdivision (c)(2) retains language from former subdivision (d)(1), but it extends the 10-day period for response to a subpoena to 14 days. Subdivision (c)(3) replaces and expands on language from former subdivision (b), regarding the court's authority to quash or modify a subpoena. Subdivision (c)(3)(A) specifies the circumstances in which the court "shall" quash or modify a subpoena. Subdivision (c)(3)(B) specifies circumstances in which a court "may" quash or modify a subpoena or impose appropriate conditions to protect the interests of the subpoenaed person.

Subdivision (d) is replaced in its entirety to conform to the 1991 amendments to the federal rule. Subdivision (d)(1) extends to nonparties the duty imposed on parties by the last paragraph of Rule 34(b), regarding the manner in which documents are produced. Subdivision (d)(2) addresses the specificity required when information subject to the subpoena is "withheld on a claim that it is privileged or subject to protection as trial preparation materials."

Subdivision (e) retains the entirety of former subdivision (f). The 1991 amendment to the federal rule that added a second sentence to subdivision (e) regarding "adequate cause" for failing to obey a subpoena is not included in the revised Nevada rule.