Request By:
Mr. Elden F. Keller
Circuit Court Clerk
27th Judicial Circuit
Laurel Courthouse
London, Kentucky 40741
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
In your letter you request the opinion of this office concerning a civil subpoena you received by mail.
The instrument directs the subpoenaed person to appear before a notary public, within 7 days after service of the subpoena, to answer attached interrogatories or a pre-typed deposition upon written questions. It directs the person subpoenaed to mail one copy of the "Answers" to a certain law firm in Lexington. Also typewritten upon the face of the subpoena is a threatening statement to the subpoenaed person to timely comply with the above or be held in contempt. It reads as follows:
"If you do not wish to appear before a notary public you may comply with this subpoena by calling (named erased) at (place erased) within 7 days after service. Your failure to appear or contact us within those 7 days may result in the filing of a motion for a rule to have you held in contempt of court."
The subpoena contains the statement that the purpose of the subpoena is to give depositions for discovery of assets pursuant to CR 69.
Your question reads:
"Is this instrument in compliance with civil procedure and a good practice of law to mail-order or otherwise by subpoena, before a notary public, and by threat of contempt for non-compliance, in order to secure or obtain interrogatory or deposition and without the presence of both legal counsel and outside the presence of both parties, or any other matter contrary to civil procedure? "
The suit was filed in the district court. We assume the court's jurisdiction came about pursuant to KRS 24A.120(1)(a).
The subpoena in question, when read as a whole, purports to direct the giving of deposition upon written questions (see CR 31.01). The attendance of a witness in this situation may be compelled by subpoena as provided in Civil Rule 45 (see CR 45.04).
In connection with depositions upon written questions, CR 31.02 provides:
"A copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the officer designated in the notice, who shall proceed promptly, in the manner provided by Rules 30.03, 30.05 and 30.06, to take the testimony of the witness in response to the questions and to prepare, certify, and file or mail the deposition, attaching thereto the copy of the notice and the questions received by him. Neither party nor his agent or attorney shall be present at the examination of the witness."
CR 31.02 requires that a copy of the notice and copies of all questions served shall be delivered by the party taking the deposition to the "officer designated in the notice. " The subpoena merely states that the witness served is to appear before "a notary public" to answer the questions served therewith.
CR 28.01 provides that depositions taken in Kentucky, to be used in its courts, shall be taken before one of the following: an examiner, a judge, clerk, commissioner or official reporter of a court, a notary public, or such other persons authorized by law. (Emphasis added). Owsley v. Commonwealth, Ky., 428 S.W.2d 199 (1968) 201.
You have indicated that a copy of the notice of the proposed taking of the deposition upon written questions and copies of all questions have not been delivered by the party taking the deposition to the officer to be designated in the notice, pursuant to CR 31.02, according to your records. You have also told us that the party serving the questions and notice has not yet complied with CR 31.01(2) by serving the questions and notice on other parties and by stating the name and address of the witness who is to answer the questions and by stating the name or descriptive title and address of the officer before whom the deposition is to be taken.
It is our opinion that the subpoena is not valid when viewed under CR 31.01 and 31.02, for reasons just stated.
In addition, the subpoena is not valid, since CR 45.01 requires that the subpoena shall, inter alia, command the person to whom it is directed to attend and give testimony at a time and place. While the subpoena refers to giving testimony within 7 days, the place is not stated. Also CR 45.04(1) requires a certificate of a member of the bar showing the time and manner of notice to take a deposition as provided in CR 31.01. Such certificate has not been filed.
You have indicated that no issue has been made of the subpoena in that case. Thus, as clerk, you request the opinion of this office as to whether you can validly issue the subpoena under the presently known facts.