A.Form; issuance.(1)Form. Every subpoena shall(a) state the name of the court from which it is issued;(b) state the title of the action and action number;(c) command each person to whom it is directed to attend a trial, hearing, interview, or deposition and give testimony; or to produce designated books, documents, or tangible things in the possession, custody, or control of that person;(d) state the time and date of the hearing, trial, interview, or deposition and the name of the judge before whom the witness is to appear or produce documents; and(e) be substantially in the form approved by the Supreme Court.(2)Issuance. All subpoenas shall issue from the court in which the matter is pending.(a)Motion. A party seeking a subpoena shall file a written motion requesting a subpoena from the judge. The motion shall set forth good cause or a reasonable basis for the subpoena. If the judge denies the motion, the judge shall state the reason for the denial in writing, and the requesting party may file a motion for reconsideration and hearing on the merits. Such motion for reconsideration shall be set within five (5) days of the filing of the motion.(b)Trial or hearing. A subpoena to attend a trial or hearing and give testimony shall be deemed approved unless the judge denies the motion in writing within five (5) days after the filing of the motion. The judge or 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 in which the case is pending.(c)Interview or deposition. A subpoena to appear to give an interview or deposition under Rule 7-504(C) NMRA will be issued only after good faith efforts to secure an interview or deposition have been unsuccessful. No subpoena to appear to give an interview or deposition shall be valid unless signed by the trial judge.(d)Production of documents or tangible things. A subpoena commanding a person to produce documents or tangible things shall be deemed approved unless the judge denies the motion in writing within five (5) days after the filing of the motion. The judge or clerk may issue a subpoena duces tecum to a party only if the subpoena duces tecum is completed by the party prior to issuance by the judge or clerk. 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 in which the case is pending.B.Service.(1) 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 on 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 (1)(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 (1) 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, fees and mileage need not be tendered. When the subpoena is issued on behalf of the defendant in a criminal action, and when the person whose attendance is commanded is an officer or agent of the state or any agency thereof, fees and mileage need not be tendered;(2) 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;(3) Personal service of the subpoena may be completed by serving the individual or, in the case of a police officer or agent of the state, by serving an on-site supervisor or a representative designated by the agency that employs the individual to be served.(4) Prior to or at the same time as service of any subpoena, notice shall be served on each party and all counsel in the manner prescribed by Rule 7-209 NMRA.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 on 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)(a) Unless specifically commanded to appear in person, a person commanded to produce and permit inspection and copying of designated books, papers, documents, or tangible things need not appear in person at the hearing or trial.(b) Subject to Subparagraph (D)(2) 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 except under an order of the court by which the subpoena was issued. 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 disclosure of privileged or other protected matter and no exception or waiver applies; or (iii) subjects a person to undue burden.(b) The court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena 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. 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 on that person may be deemed a contempt of the court punishable by fine or imprisonment.N.M. R. Crim. P. Metro. Ct. 7-606
As amended, effective 1/1/1994;5/1/1994;5/1/2002; as amended by Supreme Court Order No. 07-8300-007, effective 5/21/2007; as amended by Supreme Court Order No. 16-8300-034, effective 12/31/2016; as amended by Supreme Court Order No. 17-8300-011, effective for all cases pending or filed on or after12/31/2017. ANNOTATIONS The 2017 amendment, approved by Supreme Court Order No. 17-8300-011, effective December 31, 2017, provided additional procedures for securing a subpoena from the court in which a matter is pending; in Paragraph A, Subparagraph A(1), added the heading, in Subparagraph A(1)(c), substituted each occurrence of "statement" with "interview", in Subparagraph A(2), added the subparagraph heading, added Subparagraph A(2)(a), redesignated former Subparagraphs A(3) and A(4) as Subparagraphs A(2)(b) and A(2)(c), respectively, in Subparagraph A(2)(b), added the subparagraph heading, deleted "In matters involving trial, hearings, or production of documents or tangible things" and added "A subpoena to attend a trial or hearing and give testimony shall be deemed approved unless the judge denies the motion in writing within five (5) days after the filing of the motion.", and deleted "The judge or clerk may issue a subpoena duces tecum to a party only if the subpoena duces tecum is completed by the party prior to issuance by the judge or clerk.", in Subparagraph A(2)(c), added the subparagraph heading, deleted "In matters involving statements or depositions, no" and added "A subpoena to appear to give an interview or deposition under Rule 7-504(C) NMRA will be issued only after good faith efforts to secure an interview or deposition have been unsuccessful. No", after "appear to give", deleted "a statement" and added "an interview", added Subparagraph A(2)(d), and deleted Subparagraph A(5). The 2016 amendment, approved by Supreme Court Order No. 16-8300-034, effective December 31, 2016, in Subparagraph A(1)(d), after "deposition", added "and"; in Subparagraph B(1), after "subpoena", deleted "upon" and added "on"; in Subparagraph B(1)(b), after "on behalf of the defendant in", added "a", after "criminal", deleted "actions" and added "action", and 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 7-209 NMRA"; added a new Subparagraph B(4); in Subparagraph C(1), after "duty and impose", deleted "upon" and added "on"; in Subparagraph C(2)(b), after "Subparagraph", added "(D)", after "(2)", deleted "of Paragraph D", and after "materials except", deleted "pursuant to" and added "under"; and in Paragraph E, after "a subpoena served", deleted "upon" and added "on". The 2007 amendment, approved by Supreme Court Order No. 07-8300-007, effective May 21, 2007, amended Subparagraph (1) of Paragraph A to permit a subpoena to be issued for the taking of a statement or deposition; amended Subparagraph (2) of Paragraph A to permit blank subpoenas to be issued to the parties for compelling witnesses to attend trial or hearings or to produce documents or tangible things; added Subparagraph (4) of Paragraph A to require the trial judge to sign subpoenas to compel witnesses to appear for pretrial statements or depositions; amended Subparagraph (1)(b) of Paragraph B to permit the defendant to compel the attendance of witnesses without payment of per diem and mileage. The 2002 amendment, effective May 1, 2002, rewrote Paragraph A, which formerly related to attendance of witnesses, deleted former Paragraphs B through D relating to production of documentary evidence, service and manner of service; added present Paragraphs B, C and D; in Subsection E, deleted "magistrate" preceding "court" and deleted the former second sentence relating to service by mail.
For forms on subpoena, return for completion by sheriff or deputy and return for completion by other person making service, see Rule 4-503 NMRA. For forms on subpoena and certificate of service, see Rule 9-503 NMRA. For form on subpoena to produce document or object, see Rule 9-504 NMRA. For payment of subpoenaed witnesses from the jury and witness fee fund, see Section 34-9-11 NMSA 1978. For the requirement to pay per diem and mileage to witnesses, see Sections 38-6-4 and 10-8-4 NMSA 1978. For the subpoena of witnesses in the district court in civil cases, see Rule 1-045 NMRA. For the subpoena of witnesses in the district court in criminal cases, see Rule 5-511 NMRA.