1 STATE OF OKLAHOMA
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2 2nd Session of the 59th Legislature (2024)
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3 HOUSE BILL 3777 By: Duel
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6 AS INTRODUCED
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7 An Act relating to criminal procedure; specifying
7 requirements for issuing criminal subpoenas;
8 requiring witnesses to attend trials or hearings upon
8 service of subpoenas; allowing court clerks and
9 attorneys to issue subpoenas; directing issuers of
9 subpoenas to avoid imposing undue burden or expense
10 on persons subject to subpoenas; requiring courts to
10 enforce said duty; providing for sanctions; allowing
11 courts to quash or modify subpoenas under certain
11 circumstances; declaring subpoenas separate and
12 distinct from certain rights or obligations; amending
12 22 O.S. 2021, Sections 708, 710, 712, 715 and 716,
13 which relate to the service and issuance of
13 subpoenas; updating statutory references and form
14 requirements; providing guidelines and requirements
14 for issuing subpoenas requesting the production of
15 documents or inspection of premises; allowing for the
15 nonappearance of persons unless commanded to appear;
16 authorizing service of written objections to
16 subpoenas; establishing time period for submitting
17 written objections; providing procedures for serving
17 written objections; allowing parties to move for
18 orders to compel production; providing requirements
18 for producing documents; providing guidelines for
19 claims of privilege or protection of trial
19 preparation materials; clarifying processes for
20 serving subpoenas in person and by mail; modifying
20 exemption to subpoena requirement for court clerks;
21 clarifying criminal contempt penalty provision;
21 providing for codification; and providing an
22 effective date.
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 1 BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
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2 SECTION 1. NEW LAW A new section of law to be codified
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3 in the Oklahoma Statutes as Section 707.1 of Title 22, unless there
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4 is created a duplication in numbering, reads as follows:
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5 A. Every subpoena issued on behalf of or by a defendant shall:
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6 1. State the name of the court from which it is issued and the
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7 title of the action; and
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8 2. Command each person to whom it is directed to attend and
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9 give testimony or to produce and permit inspection, copying, testing
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10 or sampling of designated books, documents, electronically stored
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11 information or tangible things in the possession, custody or control
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12 of that person, or to permit inspection of premises, at a time and
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13 place therein specified. A subpoena may specify the form or forms
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14 in which electronically stored information is to be produced.
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15 B. A witness shall be obligated upon service of a subpoena to
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16 attend a trial or hearing at any place within the state and to
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17 produce or allow inspection of documents at a location that is
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18 specified in the subpoena.
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19 C. The court clerk shall issue a subpoena, or a subpoena for
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20 the production of documentary evidence, signed and sealed but
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21 otherwise in blank, to a party requesting it, who shall complete the
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22 subpoena before service. As an officer of the court, an attorney
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23 authorized to practice law in this state may also issue and sign a
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24 subpoena on behalf of a court in this state.
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 1 SECTION 2. NEW LAW A new section of law to be codified
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2 in the Oklahoma Statutes as Section 707.2 of Title 22, unless there
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3 is created a duplication in numbering, reads as follows:
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4 A party or an attorney responsible for the issuance and service
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5 of a subpoena shall take reasonable steps to avoid imposing undue
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6 burden or expense on a person subject to that subpoena. The court
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7 on behalf of which the subpoena was issued shall enforce this duty
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8 and impose upon the party or attorney, or both, in breach of this
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9 duty an appropriate sanction, which may include, but is not limited
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10 to, lost earnings and a reasonable attorney fee.
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11 SECTION 3. NEW LAW A new section of law to be codified
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12 in the Oklahoma Statutes as Section 707.3 of Title 22, unless there
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13 is created a duplication in numbering, reads as follows:
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14 A. On timely motion, the court by which a subpoena was issued
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15 shall quash or modify the subpoena if it:
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16 1. Fails to allow reasonable time for compliance;
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17 2. Requires a person to travel to a place beyond the limits of
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18 the county where the person resides or is served with the subpoena;
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19 3. Requires disclosure of privileged or other protected matter
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20 and no exception or waiver applies;
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21 4. Subjects a person to undue burden; or
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22 5. Requires production of books, papers, documents, or tangible
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23 things that fall outside the scope of discovery permitted by Section
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24 3226 of Title 12 of the Oklahoma Statutes.
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 1 B. If a subpoena:
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2 1. Requires disclosure of a trade secret or other confidential
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3 research, development, or commercial information; or
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4 2. Requires disclosure of the opinion of an unretained expert
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5 or information not describing specific events or occurrences in
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6 dispute and resulting from the study by the expert made not at the
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7 request of any party, the court may, to protect a person subject to
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8 or affected by the subpoena, quash or modify the subpoena. However,
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9 if the party in whose behalf the subpoena is issued shows a
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10 substantial need for the testimony or material that cannot be
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11 otherwise met without undue hardship and assures that the person to
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12 whom the subpoena is addressed will be reasonably compensated, the
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13 court may order appearance or production only upon specified
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14 conditions.
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15 SECTION 4. NEW LAW A new section of law to be codified
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16 in the Oklahoma Statutes as Section 707.4 of Title 22, unless there
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17 is created a duplication in numbering, reads as follows:
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18 Subpoenas issued in accordance with the provisions of Sections
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19 707.1 through 707.3, 708, 710 and 712 of Title 22 of the Oklahoma
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20 Statutes shall be considered separate and distinct from any right or
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21 obligation provided for in Section 2002 of Title 22 of the Oklahoma
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22 Statutes.
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23 SECTION 5. AMENDATORY 22 O.S. 2021, Section 708, is
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24 amended to read as follows:
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 1 Section 708. A subpoena, authorized by the last four sections
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2 provisions of Sections 704, 705, 706, 707, and 707.1 of this title,
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3 must be substantially in the following form:
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4 IN THE NAME OF THE STATE OF
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5 OKLAHOMA.
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6 To ......... ,
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7 Greeting: You are commanded to appear before C. D., a justice
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8 of the peace of ........ at ....... (or the grand jury of the county
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9 County of ......... or the district court of ......... county
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10 County, or other location as the case may be specified), on the
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11 ........ (stating day and hour), and remain in attendance on and
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12 call of said ........ from day to day and term to term until
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13 lawfully discharged, as a witness in a criminal action prosecuted by
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14 the State of Oklahoma against E. F. (or to testify as the case may
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15 be).
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16 SECTION 6. AMENDATORY 22 O.S. 2021, Section 710, is
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17 amended to read as follows:
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18 Section 710. A. If the books, papers or documents be required,
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19 a direction to the following effect must be continued in the
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20 subpoena:
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21 And you are required also to bring with you the following:
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22 (Describe intelligently the books, papers or documents required).
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23 B. A copy of any subpoena that commands production of documents
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24 and things or inspection of premises before trial shall be served on
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 1 each party in the manner prescribed by subsection B of Section 2005
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2 of Title 12 of the Oklahoma Statutes. If the subpoena commands
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3 production of documents and things or inspection of premises from a
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4 nonparty before trial but does not require attendance of a witness,
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5 the subpoena shall specify a date and location for the production or
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6 inspection that is at least seven (7) days after the date that the
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7 subpoena and copies of the subpoena are served on the witness and
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8 all parties, and the subpoena shall include the following language:
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9 "In order to allow objections to the production of documents and
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10 things to be filed, you should not produce them until the date
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11 specified in this subpoena, and if an objection is filed, until the
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12 court rules on the objection."
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13 C. A person commanded to produce and permit inspection,
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14 copying, testing or sampling of designated books, papers, documents,
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15 electronically stored information or tangible things, or inspection
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16 of premises need not appear in person at the place of production or
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17 inspection unless commanded to appear for deposition, hearing, or
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18 trial.
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19 D. Subject to subsection F of this section, a person commanded
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20 to produce and permit inspection, copying, testing or sampling, or
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21 any party may, within fourteen (14) days after service of the
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22 subpoena or before the time specified for compliance if such time is
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23 less than fourteen (14) days after service, serve written objection
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24 to inspection, copying, testing, or sampling of any or all of the
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 1 designated materials or of the premises, or to producing
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2 electronically stored information in the form or forms requested.
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3 An objection that all or a portion of the requested material will or
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4 should be withheld on a claim that it is privileged or subject to
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5 protection as trial preparation materials shall be made within this
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6 time period and in accordance with subsections E and F of this
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7 section. If the objection is made by the witness, the witness shall
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8 serve the objection on all parties; if objection is made by a party,
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9 the party shall serve the objection on the witness and all other
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10 parties. If objection is made, the party serving the subpoena shall
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11 not be entitled to inspect, copy, test, or sample the materials or
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12 inspect the premises except pursuant to an order of the court by
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13 which the subpoena was issued. For failure to object in a timely
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14 fashion, the court may assess reasonable costs and attorney fees or
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15 take any other action it deems proper; however, a privilege or the
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16 protection for trial preparation materials shall not be waived
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17 solely for a failure to timely object under this section. If
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18 objection has been made, the party serving the subpoena may, upon
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19 notice to the person commanded to produce, move at any time for an
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20 order to compel the production. Such an order to compel production
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21 shall protect any person who is not a party or an officer of a party
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22 from significant expense resulting from the inspection and copying
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23 commanded.
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 1 E. 1. A person responding to a subpoena to produce documents
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2 shall produce them as they are kept in the usual course of business
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3 or shall organize and label them to correspond with the categories
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4 in the demand.
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5 2. If a subpoena does not specify the form or forms for
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6 producing electronically stored information, a person responding to
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7 a subpoena shall produce the information in a form or forms in which
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8 the person ordinarily maintains it or in a form or forms that are
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9 reasonably usable.
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10 3. A person responding to a subpoena is not required to produce
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11 the same electronically stored information in more than one form.
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12 4. A person responding to a subpoena is not required to provide
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13 discovery of electronically stored information from sources that the
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14 person identifies as not reasonably accessible because of undue
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15 burden or cost. If such showing is made, the court may order
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16 discovery from such sources if the requesting party shows good
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17 cause, considering the limitations of subparagraph c of paragraph 2
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18 of subsection B of Section 3226 of Title 12 of the Oklahoma
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19 Statutes. The court may specify conditions for the discovery.
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20 F. 1. When information subject to a subpoena is withheld on a
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21 claim that it is privileged or subject to protection as trial
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22 preparation materials, the claim shall be made expressly and shall
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23 be supported by a description of the nature of the documents,
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 1 communications, or things not produced that is sufficient to enable
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2 the demanding party to contest the claim.
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3 2. If information is produced in response to a subpoena that is
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4 subject to a claim or privilege or of protection as trial
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5 preparation material, the person making the claim may notify any
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6 party that received the information of the claim and the basis for
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7 such claim. After being notified, a party shall promptly return,
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8 sequester, or destroy the specified information and any copies the
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9 party has and may not use or disclose the information until the
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10 claim is resolved. A receiving party may promptly present the
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11 information to the court under seal for a determination of the
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12 claim. If the receiving party disclosed the information before
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13 being notified, such party shall take reasonable steps to retrieve
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14 the information. The person who produced the information shall
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15 preserve the information until the claim is resolved. This
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16 mechanism is procedural only and does not alter the standards
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17 governing whether the information is privileged or subject to
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18 protection as trial preparation material or whether such privilege
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19 or protection has been waived.
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20 SECTION 7. AMENDATORY 22 O.S. 2021, Section 712, is
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21 amended to read as follows:
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22 Section 712. A. Service of subpoenas for witnesses in criminal
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23 actions in the district courts of this state a subpoena upon a
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24 person named therein shall be made in the same manner as in civil
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 1 actions pursuant to Section 2004.1 of Title 12 of the Oklahoma
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2 Statutes by delivering or mailing a copy thereof to such person and,
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3 if the attendance of the person is demanded, by tendering to that
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4 person the fees for one (1) day of attendance and the mileage
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5 allowed by law. Service of a subpoena may be accomplished by any
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6 person who is eighteen (18) years of age or older.
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7 B. Service of a subpoena by mail may be accomplished by mailing
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8 a copy thereof by certified mail with return receipt requested and
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9 delivery restricted to the person named in the subpoena. The person
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10 serving the subpoena shall make proof of service thereof to the
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11 court promptly, and in any event, before the witness is required to
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12 testify at the hearing or trial. If service is made by a person
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13 other than a peace officer, such person shall make affidavit
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14 thereof. If service is by mail, the person serving the subpoena
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15 shall show in the proof of service the date and place of mailing and
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16 attach a copy of the return receipt showing that the mailing was
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17 accepted. F