A.Form; issuance.(1) Every subpoena shall: (a) state the name of the court from which it is issued;(b) state the title of the action and its criminal 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, or to permit inspection of premises, 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.(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 a criminal 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) 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. (2)(a) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, statement, hearing or trial.(b) Subject to Subparagraph (2) of Paragraph D of this rule, a person commanded to produce and permit inspection and copying may, within fourteen (14) days after service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service, serve upon all parties written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.(3)(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. 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.
N.M. R. Crim. P. Dist. Ct. 5-511Approved, effective May 15, 2000; as amended by Supreme Court Order No. 16-8300-034, effective for all cases pending or filed on or after December 31, 2016.
Committee commentary. - See the ommittee ommentary following Rule 1-045 NMRA for a discussion of the comparable civil rule governing subpoenas. Prior to the adoption of this rule, Rule 1-045 NMRA governed subpoenas in criminal cases. See Rule 5-603 NMRA prior to the May 15, 2000, amendment of that rule.
ANNOTATIONS The 2016 amendment, approved by Supreme Court Order No. 16-8300-034, effective December 31, 2016, in Subparagraph B(2)(b), after "fees and mileage need not be tendered", deleted "Prior to or at the same time as service of any subpoena commanding production of documents and things or inspection of premises before trial, notice shall be served on each party in the manner prescribed by Rule 5-103 NMRA." Subpoenas may be issued only in connection with pending judicial actions. - It is unlawful for a court or an officer of the court to issue any subpoena in the absence of a pending judicial action. In re Chavez, cons. with In re Gallegos, 2017-NMSC-012. Issuance of unauthorized subpoenas. - Where deputy district attorney issued at least ninety-four subpoenas concerning numerous separate investigations, most of which were directed to various cellular phone providers seeking subscriber information and call activity in order to narrow potential suspects, but several sought medical records, CYFD records, and utility records, and some of which were approved by the district attorney of the Eighth Judicial District, but none of which were issued by a sitting grand jury nor reviewed by any judicial officer and were not connected to any cases before the court, the deputy district attorney and the district attorney violated Rules 5-511(A)(1)(b) and 5-511(A)(2) NMRA, which require that subpoenas be issued only in connection with existing judicial actions, and the Rules of Professional Conduct prohibiting the use of methods that have no substantial purpose other than to burden third parties and the use of methods to obtain evidence that violate the legal rights of a person. In re Chavez, cons. with In re Gallegos, 2017-NMSC-012.