In In re Wiggins (No. 2012 CO 44) the Colorado Supreme Court held that Colorado Rule of Civil Procedure 45 requires that subpoenaed documents “are to be produced only at the deposition, hearing or trial specified in the subpoena” absent the agreement of “the subpoenaed witness and other parties.” The court held that “[b]y requiring that subpoenaed documents be produced only at the specified deposition, hearing, or trial, Rule 45 balances the right to obtain information and evidence with the right to shield information from disclosure by ensuring sufficient opportunity for the subpoenaed witness, other parties to the case, or any other person claiming an interest in the subpoenaed documents to object to the subpoena.” In concrete terms, the court held that a party cannot privately arrange with a third-party witness to produce subpoenaed documents in advance of the terms of the subpoena, thereby depriving the opposing party of the opportunity to object before the subpoenaed documents are produced.
Interestingly, the court had apparently never ruled on the issue of “when and where Rule 45 requires the production of subpoenaed documents to occur.” I am surprised to find the court resolved this issue in favor of the more literal language of the rules and the language of the subpoenas rather than what it admitted to be was the “common practice” governing their use. Notably, a footnote hints at another disconnect between language and practice: “[o]n its face, a subpoena duces tecum looks like an order from the court. A lay party might, understandably, fear that any failure to comply with the subpoena will be unlawful per se, which in some cases will not be true.”