IN THE MATTER OF THE ADOPTION OF THE AMENDMENT TO CrR 4.8 - SUBPOENAS	) ) )	ORDER NO. 25700-A-908

     The Washington State Bar Association having recommended the adoption of the proposed amendment to CrR 4.8-Subpoenas, and the Court having approved the proposed amendment for publication;

     Now, therefore, it is hereby

     ORDERED:

     (a) That pursuant to the provisions of GR 9(g), the proposed amendment as attached hereto is to be published for comment in the Washington Reports, Washington Register, Washington State Bar Association and Administrative Office of the Court's web sites in January 2009.

     (b) The purpose statement as required by GR 9(e), is published solely for the information of the Bench, Bar and other interested parties.

     (c) Comments are to be submitted to the Clerk of the Supreme Court by either U.S. Mail or Internet E-Mail by no later than April 30, 2009. Comments may be sent to the following addresses: P.O. Box 40929, Olympia, Washington 98504-0929, or Camilla.Faulk@courts.wa.gov. Comments submitted by e-mail message must be limited to 1500 words.

     DATED at Olympia, Washington this 5th day of December, 2008.

For the Court
	Gerry L. Alexander
	CHIEF JUSTICE

GR 9 COVER SHEET

     In 2006, along with suggesting the redraft of CR 45, the WSBA submitted a suggested redraft of CrR 4.8. The Supreme Court published both proposals for comment. In May 2007, the Court referred proposed CrR 4.8 back to the WSBA for additional review in light of three letters the Court received in opposition to that proposal. The current proposal is submitted in response to that request for additional review. The proposal is based on extensive consultation with the authors of the comment letters and input of members of the prosecution and defense bar.

     The new suggested rule explicitly recognizes two types of subpoenas: (1) those directing a person to attend and give testimony ("a subpoena for testimony") and (2) those requiring production of documentary evidence or tangible things ("a subpoena for production").

     A subpoena for testimony compels a person to attend a trial or hearing. Provisions regarding form (subsection (a)(1)), service (subsection (a)(3)), and "when excused" (subsection (a)(4)) are consistent with existing practice. Under subsection (a)(1), a subpoena may be issued by the court or by an attorney of record. Under subsection (a)(3), service on a person directed to testify is accomplished by personal service, abode service, or mail (provided that a waiver form is filed in case of service by mail). Proof of service or a waiver of service can be evidenced by affidavit or declaration. The waiver provision is intended as an alternative means of service that will facilitate cost-effective service. Under subsection (a)(4), a person is excused from further testimony after his or her examination, unless otherwise ordered by the court. This subsection is virtually identical to CR 45 (f)(2).

     A subpoena for production compels a person to produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person. Service requirements for a subpoena for production (subsection (b)(3)) depend upon whether the subpoena also directs the person to attend and give testimony: a subpoena that both requires attendance and production must be served on the witness like a subpoena for testimony, pursuant to subsection (a)(3), but service of a subpoena for production only is accomplished pursuant to CR 5(b). Subsection (b)(4) synthesizes provisions from CR 45(c) for the protection of persons subject to a subpoena for production and provides a mechanism to seek court protection upon timely motion.

     Subsection (b)(2) places differing duties on prosecutors and defense counsel to provide advance notice of a subpoena for production. This subsection is premised on the observation that, unlike in civil practice (where discovery obligations of all parties generally correspond), procedural and ethical requirements in criminal cases are such that disclosure obligations differ for the prosecution and the defense. For instance, CrR 4.7 places quite different burdens on prosecutors and defense counsel in the context of discovery. The obligation of a defense lawyer not to act in such a way as to incriminate his or her client creates unique problems. The proposed rule therefore requires advance notice to the defendant of a subpoena seeking evidence belonging or pertaining to that defendant, and to alleged victims or complaining witnesses of a subpoena seeking evidence belonging or pertaining to that person. This would require the prosecution to give notice to the defendant of essentially all subpoenas for production (assuming that most relevant evidence will "pertain" to the defendant), but would not require the defendant to give notice to the prosecution of all subpoenas for production that the defendant may issue. A defendant would have to provide notice of a subpoena for production for evidence belonging or pertaining to a different defendant in the same case, however. Subsection (b)(2)(B) includes a provision for waiver of notice upon ex parte court order for good cause shown.

     To keep the rule as simple as possible, no proposed subpoena form (like the one appended to CR 45) is included in this proposal.

     (a) For Attendance of Witnesses at Hearing or Trial. A subpoena commanding a person to attend and give testimony at a hearing or at trial ("a subpoena for testimony") shall be issued as follows:

     (1) Form; Issuance.

     (A) A subpoena for testimony shall (i) state the title of the action, the case number, the name of the court in which the action is pending, and, if different, the name of the court from which the subpoena is issued; and (ii) command each person to whom it is directed to attend and give testimony at a specified time and place.

     (B) The court in which the action is pending or before which attendance is required may issue a subpoena for testimony under the seal of that court, or the clerk may issue the subpoena for testimony in response to a praecipe. An attorney for a party also may sign and issue a subpoena for testimony.

     (C) A command to a person to produce evidence or to permit inspection may be joined with a subpoena for testimony or may be issued separately under section (b) of this rule.

     (2) Notice. Notice to each party of the issuance of a subpoena for testimony is not required; provided that, when a subpoena for testimony also commands the person to whom it is directed to produce evidence or to permit inspection of things, the serving party shall give advance notice of such subpoena in the manner described in subsection (b) of this rule.

     (3) Service -- How Made. A subpoena for testimony may be served by any suitable person over 18 years of age, by giving the witness a copy thereof, or by leaving a copy at the witness's dwelling house or usual place of abode with some person of suitable age and discretion then residing therein. When service is made by any person other than an officer authorized to serve process, proof of service shall be made by affidavit or declaration. A subpoena for testimony may also be served by first-class mail, postage prepaid, together with a waiver of personal service and instructions for returning such waiver to the attorney of record of the party to the action in whose behalf the witness is required to appear. Service by mail shall be deemed complete upon the filing of the returned waiver of personal service, signed in affidavit or declaration form.

     (4) When Witness Excused. A witness subpoenaed to attend a hearing or trial is excused from further attendance as soon as the witness has given testimony in chief and has been cross-examined thereon, unless a party moves in open court that the witness remain in attendance and the court so orders. Witness fees will not be allowed any witness after the day on which the witness's testimony is given, except when the witness has in open court been required to remain in further attendance, and when so required the clerk shall note that fact in the minutes.

     (b) For Producing Evidence or Permitting Inspection. A subpoena commanding a person to produce and permit inspection and copying of designated documents or tangible things in the possession, custody, or control of that person ("a subpoena for production") shall be issued as follows:

     (1) Form; Issuance.

     (A) A subpoena for production shall (i) state the title of the action, the case number, the name of the court in which the action is pending, and, if different, the name of the court from which the subpoena is issued; (ii) command each person to whom it is directed to produce and permit inspection and copying of documentary evidence or tangible things in the possession, custody, or control of that person at a specified time and place; and (iii) set forth the text of subsection (b)(4) of this rule.

     (B) The court in which the action is pending or before which attendance is required may issue a subpoena for production under the seal of that court or the clerk may issue the subpoena in response to a praecipe. An attorney for a party also may sign and issue a subpoena for production.

     (C) A subpoena for production may be joined with a subpoena for testimony, or it may be issued separately.

     (2) Notice. Notice to parties of the issuance of a subpoena for production is not required; provided that, whenever a party intends to serve a subpoena for production seeking evidence or inspection of things belonging or pertaining to a defendant who is not the party seeking or issuing the subpoena, then the serving party must give all parties advance notice; and provided that, whenever any party intends to serve a subpoena for production seeking evidence or inspection of things belonging or pertaining to an alleged victim or complaining witness, then the serving party shall provide advance notice to all parties and to the alleged victim or complaining witness.

     (A) Time and Manner. If advance notice is required under this rule, then no fewer than five days prior to service on the person named in the subpoena for production, notice shall be provided in the manner prescribed by CR 5(b). The parties may agree to shorten the time for advance notice when a subpoena seeks solely evidence or tangible things belonging or pertaining to a defendant. The court may shorten the time for advance notice upon a showing of good cause by a party; provided that, any alleged victim or complaining witness whose evidence or tangible things are sought shall receive notice and an opportunity to be heard on any motion to shorten time.

     (B) Court May Excuse Notice. A court on ex parte motion may excuse compliance with the advance notice requirement upon the serving party's showing of good cause; any such court order, along with a copy of the subpoena for which notice is excused, shall be filed under seal pursuant to GR 15.

     (3) Service -- How Made. A subpoena for production shall be served in the manner prescribed in CR 5(b); provided that, if the subpoena for production is joined with a subpoena for testimony, then subsection (a)(3) of this rule shall govern service.

     (4) Protection of Persons Subject to Subpoena for Production. On timely motion, the court may quash or modify a subpoena for production if it (A) fails to allow reasonable time for compliance; (B) requires disclosure of privileged or other protected matter and no exception or waiver applies; (C) is unreasonable, oppressive, or unduly burdensome; or (D) exceeds the scope of discovery otherwise permitted under the criminal rules. The court may condition denial of a motion to quash or modify upon the advancement by the party on whose behalf the subpoena for production is issued of the reasonable cost of producing the books, papers, documents, or tangible things.

     (c) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued.

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