Serving an Out-of-State Subpoena in North Dakota (UIDDA & N.D.R.Ct. Rule 5.1)

Rather than codifying the Uniform Interstate Depositions and Discovery Act in the Century Code, the North Dakota Supreme Court adopted the uniform framework directly into the court rules as North Dakota Rule of Court 5.1 (N.D.R.Ct. 5.1), titled 'Interstate Depositions and Discovery.' Rule 5.1 streamlines the process for litigants in Minnesota, Montana, South Dakota, Texas, Colorado, California, or any other state to obtain deposition testimony, business records, oil and gas lease documentation, or medical records from witnesses and corporations located in North Dakota.

Under N.D.R.Ct. 5.1(b), requesting the issuance of a North Dakota subpoena based on a foreign subpoena does not constitute an appearance in the courts of North Dakota, meaning out-of-state counsel does not need to apply for pro hac vice admission merely to issue and serve the subpoena (though pro hac vice or local North Dakota counsel is required if a contested motion to compel, quash, or modify is later filed under Rule 5.1(e)).

Under N.D.R.Ct. 5.1(b), an out-of-state party has two streamlined options to obtain an enforceable North Dakota subpoena:

Option 1 — Clerk of District Court Issuance (Rule 5.1(b)(1)): A party may submit the foreign subpoena to a clerk of district court in the North Dakota county in which discovery is sought to be conducted (for example, the Cass County Clerk of District Court in Fargo, the Burleigh County Clerk in Bismarck, or the Williams County Clerk in Williston), along with a prepared North Dakota Rule 45 subpoena for the clerk's signature and the applicable statutory miscellaneous filing fee. The clerk will promptly issue the North Dakota subpoena for service upon the person to which the foreign subpoena is directed.

Option 2 — Issuance by a North Dakota Attorney (Rule 5.1(b)(2)): Alternatively, a party may retain an attorney licensed to practice law in North Dakota, who may directly issue and sign the North Dakota subpoena as an officer of the court pursuant to N.D.R.Civ.P. Rule 45(a)(4) after receiving the foreign subpoena.

Whether issued by the county clerk or a North Dakota attorney, N.D.R.Ct. 5.1(b)(3) mandates that the North Dakota subpoena must:

1. Incorporate the exact terms used in the foreign subpoena (it cannot broaden the scope of documents or alter the deposition obligations approved by the trial state);

2. Contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates, and of any party not represented by counsel; and

3. Include the mandatory text of N.D.R.Civ.P. Rule 45(c) and (d) setting forth the witness's rights and protections (including the right to serve written objections within 14 days or before the time specified for compliance).

Once issued, N.D.R.Ct. 5.1(c) requires the subpoena to be served in strict compliance with N.D.R.Civ.P. Rule 45—meaning personal service by a disinterested adult (and tender of the $25.00/day witness fee plus mileage under N.D.C.C. § 31-01-16 if live attendance is commanded). Process Server North Dakota handles both clerk submission/issuance at any of North Dakota's 53 county courthouses and immediate field service on the target witness or registered agent.

Once a domesticated North Dakota subpoena is served under N.D.R.Ct. 5.1(c), all provisions of North Dakota Rule of Civil Procedure 45 apply to the witness's compliance, document production, and deposition attendance. Under N.D.R.Civ.P. Rule 45(c)(2)(B), a non-party commanded to produce documents, electronically stored information (ESI), or tangible things may serve a written objection within 14 days after service of the subpoena or before the time specified for compliance if that time is less than 14 days after service.

If an objection is served or if a witness refuses to comply, N.D.R.Ct. 5.1(e) mandates that any application to the court for a protective order or to enforce, quash, or modify a subpoena issued under Rule 5.1 must comply with the rules and statutes of North Dakota and be submitted to the district court in the county in which discovery is to be conducted. Because our returns of service include full Rule 45 proof of personal delivery and itemized witness fee tenders under N.D.C.C. § 31-01-16, your local North Dakota counsel will have an airtight evidentiary record if a motion to compel becomes necessary.