A.Form; issuance.(1) A subpoena shall not be issued pursuant to these rules unless a petition has been filed. Every subpoena shall: (a) state the name of the court from which it is issued;(b) state the title of the action and its children's court action number;(c) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person at a time and place therein specified; and(d) be substantially in the form approved by the Supreme Court. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing, deposition or statement, or may be issued separately.
(2) All subpoenas shall issue from the court for the district in which the matter is pending.(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney authorized to practice law in New Mexico and who represents a party, as an officer of the court, may also issue and sign a subpoena on behalf of the court.B.Service; place of examination.(1) A subpoena may be served any place within the state;(2) A subpoena may be served by any person who is not a party and is not less than eighteen (18) years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if that person's attendance is commanded: (a) if the witness is to be paid from funds appropriated by the legislature to the administrative office of the courts for payment of state witnesses or for the payment of witnesses in indigency cases, by processing for payment to such witness the fee and mileage prescribed by regulation of the administrative office of the courts;(b) for all persons not described in Subparagraph (2)(a) of this paragraph, by tendering to that person the full fee for one day's expenses provided by Subsection A of Section 10-8-4 NMSA 1978 as per diem for nonsalaried public officers attending a board or committee meeting and the mileage provided by subsection D of Section 10-8-4 NMSA 1978. The fee for per diem expenses shall not be prorated. If attendance is required for more than one day, a full day's expenses shall be paid prior to commencement of each day attendance is required. When the subpoena is issued on behalf of the state or an officer or agency thereof, including the public defender department, fees and mileage need not be tendered. Prior to or at the same time as service of any subpoena commanding production of documents and things before trial, notice shall be served on each party in the manner prescribed by Rule 10-104, 10-105 or 10-106 NMRA; (3) A person may be required to attend a deposition or statement within one hundred (100) miles of where that person resides, is employed or transacts business in person, or at such other place as is fixed by an order of the court.(4) A person may be required to attend a hearing or trial at any place within the state.(5) Proof of service when necessary shall be made by filing with the clerk of the court a return substantially in the form approved by the Supreme Court.(6) A subpoena may be issued for taking of a deposition within this state in an action pending outside the state pursuant to Section 38-8-1 NMSA 1978 upon the filing of a miscellaneous proceeding in the judicial district in which the subpoena is to be served. Upon the docketing of the miscellaneous proceeding, the subpoena may be issued and shall be served as provided by this rule.(7) A subpoena may be served in an action pending in this state on a person in another state or country in the manner provided by law or rule of the other state or country.C.Protection of persons subject to subpoenas.(1)In general. 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.(2)Subpoena of materials.(a) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things:(i) need not appear in person at the place of production or inspection unless commanded to appear for deposition, statement, hearing or trial; (ii) absent a court order or a subpoena to appear for a deposition, statement, hearing or trial, shall not respond to the subpoena prior to the expiration of fourteen (14) days after the date of service of the subpoena; (iii) if a written objection is served or a motion to quash the subpoena is filed, shall not respond to the subpoena until ordered by the court; and (iv) may condition the preparation of any copies upon payment in advance of the reasonable cost of inspection and copying. (b) Subject to Subparagraph (2) of Paragraph D of this rule:(i) a person commanded to produce and permit inspection an copying, or a person who has a legal interest in or the legal right to possession of the designated material may file a written objection or a motion to quash the subpoena; (ii) any party may, within fourteen (14) days after service of the subpoena serve upon all parties written objection to or a motion to quash inspection or copying of any or all of the designated materials; (iii) if objection is served on the party serving the subpoena or a motion to quash is filed with the court and served on the parties, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court by which the subpoena was issued. The court may award costs and attorney fees against a party or person for serving written objections or filing a motion to quash which lacks substantial merit. (3)Modification or quashing of subpoena.(a) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it: (i) fails to allow reasonable time for compliance,(ii) requires a person who is not a party or an officer of a party to travel to a place more than one hundred (100) miles from the place where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of Subparagraph (3)(b)(iii) of this paragraph, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held, or (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iv) subjects a person to undue burden.(b) If a subpoena: (i) requires disclosure of a trade secret or other confidential research, development or commercial information; (ii) 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 (iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than one hundred (100) miles to attend trial, 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. D.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.E.Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided in Subparagraph (3)(a)(ii) of Paragraph C of this rule.F.Duty to make copies available. A party receiving documents under subpoena shall make them available for copying by other parties.N.M. R. Child. Ct. 10-143
Approved, effective 4/1/2002; Rule 10-109 NMRA, recompiled and amended as Rule 10-143 NMRA by Supreme Court Order No. 08-8300-042, effective 1/15/2009.Committee commentary. - See Rule 1-045 NMRA of the Rules of Civil Procedure for the District Courts. See the committee comments following Rule 1-045 NMRA for a discussion of the comparable civil rule governing subpoenas. This rule is also similar to Rule 5-511 NMRA.
Grand jury subpoenas may be issued pursuant to Sections 31-6-12 and 31-6-13 NMSA 1978.
ANNOTATIONS The 2008 amendment, approved by Supreme Court Order No. 08-8300-042, effective January 15, 2009, in Paragraph B(2)(b), changed "Rule 10-105, 10-105.1, 10-105.2" to "Rule 10-104, 10-105 or 10-106"; in Paragraph C(1), added the title and added "which may include, but is not limited to, lost earnings and a reasonable attorney's fee; in Paragraph C(2), added the title; added subitems (ii), (iii) and (iv) in Paragraph C(2)(a); in Paragraph C(2)(b)(i), added "or a person who has a legal interest in or the legal right to possession of the designated material may file a written objection or a motion to quash the subpoena"; in Paragraph C(2)(b)(ii), changed "service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service" to "service of the subpoena" and added "or a motion to quash"; in Paragraph C(2)(b)(iii), added "or a motion to quash is filed with the court and served on the parties, the party serving the subpoena", deleted the sentences which provided for motions to compel production, and added the last sentence; in Paragraph C(3)(b), deleted "To protect a person subject to or affected by the subpoena, the court may quash or modify the subpoena if the" at the beginning of the sentence; in Paragraph C(3)(b)(iii), added "one hundred (100) miles to attend trial"; and added Paragraph F. The 2002 amendment, effective April 1, 2002, substituted "Subpoena" for "Compelling attendance of witnesses" in the rule heading, added the entire current rule text and deleted the undesignated paragraph at the beginning of the rule which read "The Rules of Civil Procedure for the District Courts shall apply to and govern the compelling of attendance of witnesses in children's court proceeding." Recompilations. - Pursuant to Supreme Court Order No. 08-8300-042, Rule 10-109 NMRA was recompiled as Rule 10-143 NMRA, effective January 15, 2009. Law reviews. - For survey, "Children's Court Practice in Delinquency and Need of Supervision Cases Under the New Rules," see 6 N.M.L. Rev. 331 (1976).