Rule 4. Persons Subject to Jurisdiction – Process – Service

• Definition of Person.
• Jurisdiction Over Person.
• Process.
• Personal Service.
• Service by Publication.
• Service Upon a Person in a Foreign Country.
• When Service by Publication or Outside State Complete.
• Amendment.
• Proof of Service.
• Content of Proof of Service.
• Content of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier.
• Effect of Mail or Delivery Refusal.
• EXPLANATORY NOTE

• Form; Issuance
• Service; Notice.
• Protection of person subject to subpoenas:
• Duties in Responding to Subpoena.
• Contempt.
• Notice.

Rule 4. Persons Subject to Jurisdiction-Process-Service

Definition of Person.

As used in this rule, “person”, whether or not a citizen or domiciliary of this state and whether or not organized under the laws of this state, includes: an individual, executor, administrator or other personal representative; any other fiduciary; any two or more persons having a joint or common interest; a partnership; an association; a corporation; and any other legal or commercial entity.

Jurisdiction Over Person.

• Personal Jurisdiction Based Upon Presence or Enduring Relationship. A court of this state may exercise personal jurisdiction over a person found within, domiciled in, organized under the laws of, or maintaining his or its principal place of business in, this state as to any claim for relief.



• Personal Jurisdiction Based Upon Contacts. A court of this state may exercise personal jurisdiction over a person who acts directly or by an agent as to any claim for relief arising from the person’s having such contact with this state that the exercise of personal jurisdiction over the person does not offend against traditional notions of justice or fair play or the due process of law, under one or more of the following circumstances:

1. transacting any business in this state;
2. contracting to supply or supplying service, goods, or other things in this state;
3. committing a tort within or without this state causing injury to another person or property within this state;
4. committing a tort within this state, causing injury to another person or property within or without this state;
5. owning, having any interest in, using, or possessing property in this state;
6. contracting to insure another person, property, or other risk within this state;
7. acting as a director, manager, trustee, or officer of a corporation organized under the laws of, or having its principal place of business within, this state;
8. enjoying any other legal status or capacity within this state; or
9. engaging in any other activity, including cohabitation or sexual intercourse, within this state.

• Limitation on Jurisdiction Based Upon Contacts. If jurisdiction over a person is based solely upon paragraph (2) of this subdivision, only a claim for relief arising from bases enumerated therein may be asserted against that person.

• Acquisition of Jurisdiction. A court of this state may acquire personal jurisdiction over any person through service of process as provided in this rule or by statute, or by voluntary general appearance in an action by any person either personally or through an attorney or any other authorized person.

• Inconvenient Forum. If the court finds that in the interest of substantial justice the action should be heard in another forum, the court may stay or dismiss the action in whole or in part on any condition that may be just.

Process.

• Summons Contents. The summons must specify the venue of the court in which the action is brought, contain the title of the action specifying the names of the parties, and be directed to the defendant. It must state the time within which these rules require the defendant to appear and defend, and must notify the defendant that in case of the defendant’s failure to do so, judgment by default will be rendered against the defendant for the relief demanded in the complaint. It must be dated and subscribed by the plaintiff or the plaintiff’s attorney and include the post office address of the plaintiff or plaintiff’s attorney. (See Rule 4(e)(8) for additional information required if the action involves real estate and service is by publication.)



• Summons Served With or Without Complaint. A copy of the complaint need not be served with the summons in which case the summons must state that the complaint is or will be filed with the clerk of the court in which the action is commenced, and if the defendant within 20 days after service of the summons causes notice of appearance to be given and in person or by an attorney demands in writing a copy of the complaint, specifying a place within the state where it may be served, a copy thereof within 20 days thereafter must be served accordingly. If, in that case, the complaint is not filed with the clerk within 20 days after service of the summons, the action is deemed discontinued.

• Summons Served and Complaint Not Filed. The defendant may serve a written demand on the plaintiff to file the complaint. Service of the demand must be made under subdivision (d) on the plaintiff’s attorney or on the plaintiff if the plaintiff is not represented by an attorney. If the plaintiff does not file the complaint within 20 days after service of the demand, service of the summons is void. The demand must contain notice that if the complaint is not filed within 20 days, service of the summons is void under this rule.

• The defendant may file the summons and complaint, and the costs incurred on behalf of the plaintiff may be taxed as provided in Rule 54(e).

Personal Service.

• By Whom Process Served. Service of all process may be made: within the state by any person of legal age not a party to nor interested in the action; and outside the state by any person who may make service under the law of this state or under the law of the place in which service is made or who is designated by a court of this state.

• How Service Made Within the State. Personal service of process within the state must be made as follows:

1. upon an individual 14 or more years of age by (i) delivering a copy of the summons to the individual personally; (ii) leaving a copy of the summons at the individual’s dwelling house or usual place of abode in the presence of a person of suitable age and discretion then residing therein; (iii) delivering, at the office of the process server, a copy of the summons to the individual’s spouse if the spouses reside together; (iv) delivering a copy of the summons to the individual’s agent authorized by appointment or by law to receive service of process; or (v) any form of mail or third-party commercial delivery addressed to the individual to be served and requiring a signed receipt and resulting in delivery to that individual;
2. upon an individual under the age of 14 years, by delivering a copy of the summons to the individual’s guardian, if the individual has one within the state, and, if not, then to the individual’s father or mother or any person or agency having the individual’s care or control, or with whom the individual resides. If service cannot be made upon any of them, then as directed by order of the court;
3. upon an individual who has been judicially adjudged incompetent or for whom a guardian of the individual’s person or estate has been appointed in this state, by delivering a copy of the summons to the individual’s guardian. If a general guardian and a guardian ad litem have been appointed, both must be served;
4. upon a domestic or foreign corporation or upon a partnership or other unincorporated association, by (i) delivering a copy of the summons to an officer, director, superintendent or managing or general agent, or partner, or associate, or to an agent authorized by appointment or by law to receive service of process in its behalf, or to one who acted as an agent for the defendant with respect to the matter upon which the claim of the plaintiff is based and who was an agent of the defendant at the time of service; (ii) if the sheriff’s return indicates no person upon whom service may be made can be found in the county, then service may be made by leaving a copy of the summons at any office of the domestic or foreign corporation, partnership or unincorporated association within this state with the person in charge of the office; or (iii) any form of mail or third-party commercial delivery addressed to any of the foregoing persons and requiring a signed receipt and resulting in delivery to that person;
5. upon a city, township, school district, park district, county, or any other municipal or public corporation, by delivering a copy of the summons to any member of its governing board.
6. upon the state, by delivering a copy of the summons to the governor or attorney general or an assistant attorney general and, upon an agency of the state, such as the Bank of North Dakota or the State Mill and Elevator Association, by delivering a copy of the summons to the managing head of the agency or to the attorney general or an assistant attorney general; or
7. if service is made upon an agent who is not expressly authorized by appointment or by law to receive service of process on behalf of the defendant, a copy of the summons and complaint must be mailed or delivered via a third-party commercial carrier to the defendant with return receipt requested not later than ten days after service by depositing the same, with postage or shipping prepaid, in a post office or with a commercial carrier in this state and directed to the defendant to be served at the defendant’s last reasonably ascertainable address.

• How Service Made Outside the State. Service upon any person subject to the personal jurisdiction of the courts of this state may be made outside the state:

1. in the manner provided for service within this state, with the same force and effect as though service had been made within this state;
2. in the manner prescribed by the law of the place in which the service is made for service in that place in an action in any of its courts of general jurisdiction; or
3. as directed by order of the court.



• Service Under Statute. Whenever a statute of this state or an order of the court provides for service of a summons or of a notice or of an order in lieu of summons upon a party not an inhabitant of or found within the state, service must be made under the circumstances and in the manner prescribed by the statute or order or in any manner permitted by these rules and not precluded by the statute or order.

Service by Publication.

• When Service by Publication Permitted. A defendant, whether known or unknown, who has not been served personally under the foregoing subdivisions of this rule may be served by publication in the manner hereinafter provided in one or more of the following situations only if:

1. The claim for relief is based upon one or more grounds for the exercise of personal jurisdiction under paragraph (2) of subdivision (b) of this rule;
2. The subject of the action is real or personal property in this state and the defendant has or claims a lien thereon or other interest therein, whether vested or contingent, or the relief demanded against the defendant consists wholly or partly in excluding the defendant from that lien or interest or in defining, regulating, or limiting that lien or interest, or the action otherwise affects the title to the property.
3. The action is to foreclose a mortgage, cancel a contract for sale, or to enforce a lien upon or a security interest in real or personal property in this state;
4. The plaintiff has acquired a lien upon property or credits of the defendant within this state by attachment, garnishment, or other judicial processes and the property or credit is the subject matter of the litigation or the underlying claim for relief relates to the property or credits;
5. The action is for divorce, separation from bed and board, or annulment of a marriage of a resident of this state or to determine custody of an individual subject to the court’s jurisdiction; or
6. The action is to award, partition, condemn, or escheat real or personal property in this state.



• Filing of Complaint and Affidavit for Service by Publication. Before service of the summons by publication is authorized in any case, there must be filed with the clerk of the court in which the action is commenced a complaint setting forth a claim in favor of the plaintiff and against the defendant based on one or more of the situations specified in paragraph (1) of this subdivision and an affidavit executed by the plaintiff or the plaintiff’s attorney stating, as may be applicable, one or more of the following:

1. That after diligent inquiry personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant;
2. That after diligent inquiry personal service of the summons cannot be made upon the defendant in this state to the best knowledge, information, and belief of the affiant;
3. That the defendant is a domestic or foreign corporation and has no officer, director, superintendent, managing agent, business agent, or other agent authorized by appointment or by law upon whom service of process can be made in its behalf in this state; or
4. That all persons having or claiming an estate or interest in, or lien or encumbrance upon, the real property described in the complaint, whether as heirs, devisees, legatees, or personal representative of a deceased person, or under any other title or interest, and not in possession, nor appearing of record in the office of the register of deeds, the clerk of the district court, or the county auditor of the county in which the real property is situated, to have such claim, title or interest therein, are proceeded against as unknown persons defendant pursuant to Chapter 32 17 or 32 19 of the North Dakota Century Code, and stating facts necessary to satisfy the requirements of those chapters.
5. Number of publications. Service of the summons by publication may be made by publishing the same 3 times, once in each week for 3 successive weeks, in a newspaper published in the county in which the action is pending, and if no newspaper is published in that county then in a newspaper having a general circulation therein although published in another county.
6. Mailing or Delivering Summons and Complaint. A copy of the summons and complaint, at any time after the filing of the affidavit for publication and not later than 10 days after the first publication of the summons, must be deposited in a post office or with a third-party commercial carrier in this state, postage or shipping prepaid, and directed to the defendant to be served at the defendant’s last reasonably ascertainable address.
7. Personal Service Outside State Equivalent to Publication. After the affidavit for publication and the complaint in the action are filed, personal service of the summons and complaint upon the defendant out of state is equivalent to and has the same force and effect as the publication and mailing or delivery provided for in paragraphs (3) and (4) of this subdivision.
8. Time When First Publication or Service Outside State Must Be Made. The first publication of the summons, or personal service of the summons and complaint upon the defendant out of the state, must be made within 60 days after the filing of the affidavit for publication. If not so made, the action is deemed discontinued as to any defendant not served within that time.
9. When Defendant Served by Publication Permitted to Defend. The defendant upon whom service by publication is made, or the defendant’s representative, on application and sufficient cause shown at any time before judgment, must be allowed to defend the action. Except in an action for divorce, the defendant upon whom service by publication is made, or the defendant’s representative, upon making it appear to the satisfaction of the court by affidavit, stating the facts, that the defendant has a good and meritorious defense to the action, and the defendant had no actual notice or knowledge of the pendency of the action so as to enable the defendant to make application to defend before the entry of judgment, and upon filing an affidavit of merits, may be allowed to defend at any time within 3 years after entry of judgment on such terms as may be just. If the defense is successful and the judgment, or any part of the judgment, has been collected or otherwise enforced, restitution may be ordered by the court, but the title to property sold under the judgment to a purchaser in good faith may not be affected. A defendant who receives a copy of the summons in the action mailed or delivered to the defendant as provided in paragraph (4), or upon whom the summons is personally served out of this state, as provided in paragraph (5), is deemed to have had notice of the pendency of the action and of the judgment.
10. Additional Information to be Published. In all cases where publication of summons is made in an action in which the title to, or an interest in or lien upon, real property is involved or affected or brought into question, the publication must also contain a description of the real property and a statement of the object of the action.

Service Upon a Person in a Foreign Country.

Unless otherwise provided by law, service upon an individual, other than an infant or an incompetent person, may be effected in a place not within any judicial district of the United States:

• by any internationally agreed means reasonably calculated to give notice, such as those means authorized by the Hague Convention on the Service Abroad of Judicial and Extrajudicial Documents; or

• if there is no internationally agreed means of service or the applicable international agreement allows other means of service, provided the service is reasonably calculated to give notice:



1. in the manner prescribed by law of the foreign country for service in that country in an action in any of its courts of general jurisdiction; or
2. as directed by the foreign authority in response to a letter rogatory or letter of request; or
3. unless prohibited by the law of the foreign country, by

• delivery to the individual personally of a copy of the summons and the complaint; or
• any form of mail or third-party commercial delivery requiring a signed receipt, to be addressed and dispatched by the clerk of the court to the party to be served; or

• by any other means not prohibited by international agreement as may be directed by the court. Unless otherwise provided by law, service must be effected upon an infant or an incompetent person in a place not within any judicial district of the United States in the manner prescribed by paragraphs (2)(A) or (B), and (3). Unless otherwise provided by law, service must be effected upon a foreign corporation, partnership or other unincorporated association, that is subject to suit under a common name, in a place not within any judicial district of the United States in the manner prescribed for individuals in this subdivision except personal delivery as provided in paragraph (2) (C) (i).

When Service by Publication or Outside State Complete.

Service by publication is complete upon the expiration of fifteen days after the first publication of the summons. Personal service of the summons and complaint upon the defendant out of state is complete upon the expiration of fifteen days after the date of service.

Amendment.

At any time and upon such notice and terms as it deems just, the court, in its discretion, may allow any process or proof of service thereof to be amended unless it clearly appears that material prejudice would result to the substantial rights of the party against whom the process issued.

Proof of Service.

Proof of service of the summons and of the complaint or notice, if any, accompanying the same or of other process, must be made as follows:

• if served by the sheriff or other officer, by the officer’s certificate of service;

• if served by any other person, by the server’s affidavit of service;

• if served by publication, by an affidavit made as provided in Section 31 04 06 of the North Dakota Century Code and an affidavit of mailing or an affidavit of delivery via a third-party commercial carrier of a copy of the summons and complaint in accordance with subdivision (4) of subsection (e) of this rule, if the same has been deposited;

• in any other case of service by mail or delivery via a third-party commercial carrier resulting in delivery in accordance with paragraph (2) or (3) of subdivision (d) of this rule, by an affidavit of mailing or an affidavit of delivery of a copy of the summons and complaint or other process, with return receipt attached; or

• by the written admission of the defendant.
  

Content of Proof of Service.

The certificate, affidavit or admission of service mentioned in subdivision (h) of this rule must state the date, time, place and manner of service. If the process, pleading, order of court, or other paper is served personally by a person other than the sheriff or person designated by law, the affidavit of service must also state that the server is of legal age and not a party to the action nor interested in the action, and that the server knew the person served to be the person named in the papers served and the person intended to be served.

Content of Affidavit of Mailing or Delivery via a Third-party Commercial Carrier.

An affidavit of mailing or delivery required by this rule must state a copy of the process, pleading, order of court, or other paper to be served was deposited by the affiant, with postage or shipping prepaid, in the mail or with a third-party commercial carrier and directed to the party shown in the affidavit to be served at the party’s last reasonably ascertainable address. The affidavit must contain the date and place of deposit and indicate the affiant is of legal age. The return receipt, if any, must be attached to the affidavit.

Effect of Mail or Delivery Refusal.

If a summons and complaint or other process is mailed or sent with delivery restricted and requiring a receipt signed by the addressee, the addressee’s refusal to accept the mail or delivery constitutes delivery. Return of the mail or delivery bearing an official indication on the cover delivery was refused by the addressee is prima facie evidence of the refusal.

EXPLANATORY NOTE

Rule 4 was amended, effective 1971; January 1, 1976; January 1, 1977; January 1, 1979; September 1, 1983; March 1, 1986; March 1, 1990; March 1, 1996; March 1, 1998; March 1, 1999.



Rule 4 governs civil jurisdiction and service of process. In contrast, Rule 5 applies to service of papers other than process.

Rule 4 was amended, effective March 1, 1999, to allow delivery via a third-party commercial carrier as an alternative to the Postal Service. The requirement for a “third-party” is consistent with the rule’s requirement for personal service by a person not a party to nor interested in the action. The requirement for a “commercial carrier” means it must be the regular business of the carrier to make deliveries for profit. A law firm may not act as its own commercial carrier service for service of process. Finally, the phrase “commercial carrier” is not intended to include or authorize electronic delivery. Service via e-mail or facsimile transmission is not permitted by Rule 4.

Originally, Rule 4 concerned process, with no mention of jurisdiction. In 1971, what are now subdivisions (a) [Definition of Person] and (b) [Jurisdiction Over Person] were added. They were taken from the Uniform Interstate and International Procedure Act. Many changes were also made to subdivision (d) [previously (c) ] concerning personal service, several of which were taken from that Act. Subdivision (c) was amended, effective March 1, 1998, to provide a defendant with the means to compel the plaintiff to file the action.

Subdivision (d) was amended, effective March 1, 1998, to allow personal service by delivering a copy of the summons to an individual’s spouse.

A problem may arise with service by mail or delivery by third-party commercial carrier, under subdivisions (d)(2) or (d)

(3) (C) when the person to be served refuses delivery. This refusal of delivery is tantamount to receipt of the mail or delivery for purposes of service. On the other hand, if the mail or delivery is unclaimed, no service is made. Subdivision (l) was added in 1983, effective September 1, 1983, to make it clear that refusal of delivery by the addressee constitutes delivery.

Statutes governing special procedures often conflict with these rules. As an example, N.D.C.C. 32-19-32 concerning the time period for mailing the summons and complaint after publication in a mortgage foreclosure conflicts with Rule 4(e)

(4). In this situation, Rules 4(d)(4) and 81(a) recognize that provisions of the statute prevail.

A new subdivision (f) was added, effective March 1, 1996, to provide procedures for service upon a person in a foreign country. The new procedures follow Rule 26(f), Fed.R.Civ.P. The letter designation of each subdivision was changed accordingly.

SOURCES: Joint Procedure Committee Minutes of April 30-May 1, 1998, pages 3, 8, and 11; January 29-30, 1998, pages 17-18; September 25-26, 1997, page 2; January 30, 1997, pages 6-7, 10-12; September 26-27, 1996, pages 14-16; January 26-27, 1995, pages 7-8; April 20, 1989, page 2; December 3, 1987, pages 1-4 and 11; May 21-22, 1987, page 5; November 29, 1984, pages 3-5; September 30-October 1, 1982, pages 15-18; April 15-16, 1982, pages 2-5; December 11-12, 1980, page 2; October 30-31, 1980, page 31; January 17-18, 1980, pages 1-3; November 29-30, 1979, page 2; October 27-28, 1977, page 10; April 8-9, 1976, pages 5-9; Rule 4, FRCivP.

STATUTES AFFECTED: SUPERSEDED: Sections 28-0502, 28-0503, 28-0504, 28-0505, 28-0601, 28-0602, 28-0603, 28-0604, 28-0605, 28-0606, 28-0607, 28-0608, 28-0609, 28-0610, 28-0616, 28-0619, 28-0620, 28-0621, 28-0622, 28-0623, 28-0624, 28-0625, 28-0626, 28-0627, 28-0628, 28-0629, 28-0632, 28-3001, NDRC 1943, and Chapters 28-06, 28-06.1, N.D.C.C. CROSS REFERENCE: Rules 5 (Service and Filing of Pleadings and Other Papers), 45 (Subpoena), and 81 (Applicability In General), N.D.R.Civ.P.; Rule 8.4 (Summons in Action for Divorce or Separation), N.D.R.Ct.. [Effective March 1, 1999]

Rule 45. Subpoena

Form; Issuance

• Every subpoena must



1. state the title of the action, the name of the court in which it is filed, and its civil action number; and
2. 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 upon order of the court for good cause shown, to permit inspection of premises, at a time and place therein specified. A copy of any court order must be attached to the subpoena. A command to produce evidence or to permit inspection may be joined with a command to appear at a trial or hearing or at a deposition, or may be issued separately.

• A subpoena must be issued by the clerk under the seal of the court or by an attorney for a party to the action or special proceeding. The subpoena must be issued in the name of the court for the county in which the action is filed. If issued by the clerk, it must be issued signed and sealed but otherwise blank, and the party requesting the subpoena shall complete it before service. If issued by an attorney for a party, the subpoena must be subscribed in the name of the attorney together with the attorney’s office address and must identify the party for whom the attorney appears.

• A subpoena may be issued by the clerk, under seal of the court, to an attorney representing a party in a civil action pending in another state upon filing proof of service of notice under subdivision (b)(2), or to a party in a civil action pending in another state upon filing a letter of request from a foreign court. The subpoena must be issued in the name of the court for the county where the subpoena will be served. The subpoena may be used and discovery obtained within this state in the same manner and subject to the same conditions and limitations as if the action were pending within this state. Any dispute regarding the subpoena, or discovery demanded, needing judicial involvement must be submitted to the court for the county where the subpoena issued.

Service; Notice.

• Service of a subpoena upon a person named therein must be made by personal service under Rule 4(d) and, if the person’s attendance is commanded, by tendering to that person the fees for one day’s attendance and the mileage and travel expense allowed by law. The witness need not obey the subpoena if the witness fee and payment for mileage and travel expense are not tendered with the subpoena. The witness fee, mileage and travel expense are not required to be tendered, if the witness fee, mileage and travel expense are to be paid by this state or any political subdivision thereof. A subpoena may be served at any place within the state.

• Service of a notice to take a deposition as provided in Rules 30(b) and 31(a) is a prerequisite for the issuance of a subpoena that commands a person to attend and give testimony at a pretrial deposition. Service of a notice for production, inspection or copying, as provided in this rule, is a prerequisite for the issuance of a subpoena that commands production, inspection or copying before trial. A description of the material to be produced, inspected or copied, or a description of the premises to be inspected, must be included in the notice or attached to the notice. Notice must be served on each party in the manner set by Rule 5(b). A copy of the notice and of the proof of service are sufficient authorization for the clerk to issue a subpoena for a pretrial deposition, pretrial production, pretrial inspection or pretrial copying. The attorney’s signature on a subpoena issued by an attorney for a party constitutes certification that notice was served.

Protection of person subject to subpoenas:

• 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.



• (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, inspection or copying unless commanded to appear for a deposition, hearing or trial.

• (B) Subject to paragraph (d)(2) of this rule, a person commanded to produce, permit inspection or copying before a trial or hearing may object in writing. The objection must be received by the party or attorney designated in the subpoena within 10 days after receipt of the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance. If objection is made, the party serving the subpoena is not entitled to production, inspection or copying except upon order of the court by which the subpoena was issued. If objection is made, the party serving the subpoena may, upon notice to the person commanded to produce, permit inspection or copying, move at any time for an order to compel production, inspection or copying. An order to compel production, inspection or copying must protect any person who is not a party or an officer of a party from significant expense resulting from production, inspection or copying.

• A resident of this state may be required by subpoena to attend a deposition only in the county where that person resides, is employed or transacts business in person, or at such other convenient place as prescribed by order of court. A nonresident of this state may be required by subpoena to attend a deposition in any county of this state. A resident or nonresident may be required to attend a hearing or trial any place within this state.

• On timely motion, the court by which a subpoena was issued shall quash or modify a subpoena that

1. fails to allow reasonable time for compliance;
2. requires attendance beyond the requirements of paragraph (c) (3) of this rule;
3. subjects a person to undue burden; or
4. 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.

Duties in Responding to Subpoena.

• 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.



• 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 must be made expressly and must 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.

Contempt.

Failure by any person without adequate excuse to obey a subpoena served upon that person may be 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 by paragraph (c) (3).

Notice.

All subpoenas commanding pretrial or prehearing production, inspection or copying must contain the following notice:

“You may object to this subpoena by sending or delivering a written objection, stating your valid reason, to {Insert the name and address of the party, or attorney representing the party seeking production, inspection or copying}. Any objection must be received within 10 days after you receive the subpoena. If the time specified in the subpoena for compliance is less than 10 days, any objection must be received at least 24 hours before the time specified for compliance.

If you make a timely objection, you do not need to comply with this subpoena unless the court orders otherwise. You will be notified if the party serving the subpoena seeks a court order compelling compliance with this subpoena. You will then have the opportunity to contest enforcement.

Failure to obey this subpoena, without making a timely objection, and stating a valid reason, may be contempt of court.”

EXPLANATORY NOTE

Rule 45 was amended, effective July 1, 1981; January 1, 1988; January 1, 1995; March 1, 1997; March 1, 1999.

Rule 45 was revised, effective January 1, 1995, in response to the 1991 federal revision. Significant changes to North

Dakota’s rule include the following: (1) An action must be filed before a subpoena may issue; (2) A subpoena may compel a non-party to produce evidence independent of any deposition; (3) A subpoena may compel the inspection of premises in the possession of a non-party upon order of the court for good cause shown; and (4) Notice must be printed on a subpoena advising of the right to object when pretrial or prehearing production or inspection is commanded. The scope of discovery under Rule 26 is not intended to be altered by the revision.

Subdivision (f) was amended, effective March 1, 1999, to allow an objection to a subpoena to be sent via a commercial carrier as an alternative to mail.

SOURCES: Joint Procedure Committee Minutes of January 29-30, 1998, page 20; January 25-26, 1996, page 20; January 27-28, 1994, pages 11-16; April 29-30, 1993, pages 4-8, 18-20; January 28-29, 1993, pages 2-7; May 21-22, 1987, page 3; February 19-20, 1987, pages 3-4; October 30-31, 1980, pages 26-29; November 29-30, 1979, page 12; Rule 45, FRCivP.

STATUTES AFFECTED: SUPERSEDED: Sections 31-0113, 31-0120, 31-0121, 31-0302, 31-0303, 31-0305, 31-0306, 31-0310, 31-0311, 31-0312, 31-0314, NDRC 1943; Section 31-05-22, N.D.C.C. CROSS REFERENCE: Rules 26 (General Provisions Governing Discovery), 30 (Depositions Upon Oral Examination), and 31 (Depositions of Witnesses Upon Written Questions), N.D.R.Civ.P.; Rule 17 (Subpoena) N.D.R.Crim.P.