Rule 17. Subpoenas

(a) For Attendance of Witnesses; Form; Issuance. A subpoena for court hearings, depositions, or trials may be issued by the clerk of any court or any justice as defined by statute. A notary may issue a subpoena for depositions only. A subpoena shall comply with the form required by statute and shall command each person to whom it is directed to attend and give testimony at the time and place specified therein.

(b) For Production of Documentary Evidence and of Objects. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, or other objects designated therein at the time and place specified therein.

(c) Service. Service of a subpoena shall be made by reading the subpoena to the person named or by giving that person in hand an attested copy thereof. A subpoena may be served by any person who is eighteen years of age or older.

(d) Subpoena for Out-of-State Witnesses. A subpoena for witnesses located outside the state shall be issued in accordance with RSA ch. 613.

(e) Contempt. Failure to obey a subpoena without adequate excuse may be
punishable by contempt of court.

(f) Motions to Quash. An individual may request that the court quash a subpoena on the grounds of improper service, hardship, or otherwise as provided by law. Notice of the motion must be served on all parties. The court shall notify all parties of any hearing on the motion and the decision.

Comment

Rule 17(a) derives from RSA 516:1 through 516:4. RSA 516:3 provides in pertinent part that any justice may issue writs for witnesses in any pending New Hampshire case. Under this statute, a justice of the peace may issue a subpoena for witnesses, even if the justice is an attorney for one of the parties. See Hazelton Company v. Southwick Construction Company, 105 N.H. 25 (1963).

Rule 17(b) permits a party to seek production of books, papers, documents or other objects through the service of a subpoena duces tecum.

The first sentence of paragraph (c) sets forth the appropriate methods of service and is a consistent restatement of RSA 516:5. This paragraph reflects the State’s statutory exemption from the requirement of tendering witness fees in advance of trial or hearing. State v. Tebetts, 54 N.H. 240 (1874). Paragraphs (c) and (e) extend this principle to cases in which counsel has been appointed for the defendant or in which a defendant demonstrates an inability to pay the fees and mileage allowed by law.

Rule 17(d) addresses the summoning of witnesses located outside the state and reflects the procedure for summoning out-of-state witnesses established by the Uniform Act, RSA ch. 613. The rule recognizes the current practice whereby applications to summon out-of-state witnesses may be made ex parte. A party is not required by law or rule to give notice of its intent to summon a witness regardless of whether the witness is located in the state.