Ark. R. Civ. P. 45.1

As amended through November 13, 2023

Rule 45.1 - Subpoena for Interstate Depositions and Discovery

(a)Purpose. This rule governs depositions and discovery conducted in Arkansas in connection with a civil action pending in another state.

(b)Definitions.

(1) "Foreign jurisdiction" means a state other than Arkansas.

(2) "Foreign subpoena" means a subpoena issued under authority of a court of record of a foreign jurisdiction.

(3) "Person" means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.

(4) "State" means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.

(5) "Subpoena" means a document, however denominated, issued under authority of a court of record requiring a person to:

(A) attend and give testimony at a deposition; or

(B) produce and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person.

(c)Issuance of Subpoena for Interstate Depositions and Discovery.

(1) To request issuance of a subpoena under this rule, a party must submit a foreign subpoena to the circuit clerk in the county in which discovery is sought to be conducted. A request for the issuance of a subpoena under this rule does not constitute an appearance in the courts of this state.

(2) When a party submits a foreign subpoena to a circuit clerk, the clerk, in accordance with the court's procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed. At the time of issuance of the subpoena, the circuit clerk shall not open a case and shall not collect a fee other than that provided by Ark. Code Ann. section 21-6-402(b)(1). Return or proof of service shall not be made to the circuit clerk but to the attorney who requested the subpoena, and he or she shall retain it and furnish a copy to any party or to the deponent upon request.

(3) The person to whom the subpoena is directed may within ten days after the service or on or before the time specified in the subpoena for compliance if such time is less than ten days, serve upon the attorney causing the subpoena to be issued written objection to the subpoena or discovery sought. If objection is made, the party who requested the subpoena shall not be entitled to proceed with the deposition or discovery except pursuant to an order of the court. Upon an objection, the party who requested the subpoena may move to enforce the subpoena by filing a motion, with notice to the subject of the subpoena, for an order to enforce the subpoena and proceed with discovery. The motion shall be filed with the circuit clerk. Upon the filing of the motion, the circuit clerk shall assign the matter a case number and collect the applicable fee. An application under subdivision (f) of this rule for a protective order or to quash or modify the subpoena shall be filed and heard in this case, and no additional fees shall be assessed.

(4) A subpoena under subdivision (c)(2) of this rule must:

(A) conform to the requirements of Rule 45, including the approved Form of Subpoena and Notice to Person Subject to Subpoenas, but may otherwise incorporate the terms used in the foreign subpoena so long as they conform to these rules; and

(B) 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.

(d)Service of Subpoena. A subpoena issued under subdivision (c) of this rule must be served in compliance with Rule 45(c).

(e)Deposition, Production, and Inspection. Provisions of these rules, including Rule 26.1(j), Rule 34, and Rule 45(b) and (e), relating to compliance with subpoenas to attend and give testimony, produce designated books, documents, records, electronically stored information, or tangible things apply to subpoenas issued under subdivision (c) of this rule.

(f)Application to Court. An application to the court for a protective order or to enforce, quash, or modify a subpoena issued under subdivision (c) of this rule must comply with these rules, including Rule 26(c), Rule 45(b) and (e), and be submitted to the court in the county in which discovery is to be conducted.

Ark. R. Civ. P. 45.1

COMMENT

Reporter's Notes (2018): Rule 45 (f), "Depositions for Use in Out-of-State Proceedings," was replaced with new Rule 45.1. This new procedure is based on the Uniform Interstate Depositions and Discovery Act that was adopted by the National Conference of Commissioners of Uniform State Laws in 2007.

Rule 45.1 is limited to discovery in state courts, the District of Columbia, Puerto Rico, the United States Virgin Islands, and the territories of the United States, but does not extend to include foreign countries.

Arkansas's adoption of the uniform provision does not include section (2)(5)(C) ("permit inspection of premises under the control of the person") in light of Ark. R. Civ. P. 34(c).

The Uniform Law Commission describes the use of the procedure by way of an example in which a case filed in Kansas (the trial state) has a witness to be deposed that lives in Arkansas (the discovery state). A lawyer in the Kansas case will issue a subpoena in Kansas. That lawyer will then prepare an Arkansas subpoena that has the same terms as the Kansas subpoena. The lawyer will present the completed and issued Kansas subpoena and the Arkansas subpoena to the clerk in Arkansas. The Arkansas clerk, upon being given the Kansas subpoena, will then issue the Arkansas subpoena. The Arkansas subpoena will be served on the deponent in accordance with Arkansas law. The advantages of this process are readily apparent. The only documents that need to be presented to the Arkansas clerk are the subpoena issued in the trial state and the draft Arkansas subpoena. There is no requirement to hire local counsel to have the subpoena issued in Arkansas, and there is no need to present the matter to a judge before the subpoena can be issued. In effect, the Arkansas clerk simply reissues the subpoena of the trial state, and the new subpoena is then served on the deponent. Nothing in this rule limits any party from applying for appropriate relief in the trial state. Applications to the court that affect only the parties to the action can be made in the trial state and would presumably be made and ruled on before the deposition subpoena is ever presented to the clerk in Arkansas. The issuance of the Arkansas subpoena invokes Arkansas jurisdiction in order to: enforce the subpoena; quash or modify the subpoena; issue any protective order or resolve any other dispute relating to the subpoena; and impose sanctions. The discovery to be conducted in Arkansas must comply with the laws of Arkansas, which has a significant interest in protecting its residents who become nonparty witnesses in an action pending in a foreign jurisdiction from any unreasonable or unduly burdensome discovery request. Any application to the Arkansas court relating to the discovery must comply with the law of Arkansas, including Arkansas's law governing lawyers appearing in its courts. This rule does not change existing state rules governing out-of-state lawyers appearing in its courts.

Subsections (c)(2) and (3) address when a case is opened under this rule. In the routine case, a file is not opened, and the only fee charged is the fee under Ark. Code Ann. § 21-6-402(b)(1). In the event, the person to whom the subpoena is directed makes an objection, and the party requesting the subpoena wants to enforce the subpoena, then the party seeking to enforce the subpoena opens a case with the circuit clerk, a case number is assigned, and the applicable filing fee under Ark. Code Ann. § 21-6-403 is assessed.