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SENATE FLOOR VERSION
April 9, 2024
ENGROSSED HOUSE
BILL NO. 3777 By: Duel, Davis, and Lowe
(Jason) of the House
and
Howard of the Senate
An Act relating to criminal procedure; specifying
requirements for issuing criminal subpoenas;
requiring witnesses to attend trials or hearings upon
service of subpoenas; allowing court clerks and
attorneys to issue subpoenas; directing issuers of
subpoenas to avoid imposing undue burden or expense
on persons subject to subpoenas; requiring courts to
enforce said duty; providing for sanctions; allowing
courts to quash or modify subpoenas under certain
circumstances; declaring subpoenas separate and
distinct from certain rights or obligations; amending
22 O.S. 2021, Section s 708, 710, 712, 715 and 716,
which relate to the service and issuance of
subpoenas; updating statutory reference s and form
requirements; providing guidelines and requirements
for issuing subpoenas requesting the production of
documents or inspecti on of premises; allowing for the
nonappearance of persons unless commanded to appear;
authorizing service of written objection s to
subpoenas; establishing time period for submitting
written objections; providing procedures for serving
written objections; allowing parties to move for
orders to compel production; providing requirements
for producing documents; providing guidelines for
claims of privilege or protection of trial
preparation materials; clarifying processes for
serving subpoenas in person and by mail; modifying
exemption to subpoena requirem ent for court clerks;
clarifying criminal contempt penalty provision;
providing for codification; and providing an
effective date.
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BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLAHOMA:
SECTION 1. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 707.1 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. A subpoena issued on behalf of or by a defendant to a law
enforcement agency may command the production of the foll owing law
enforcement records:
1. Body camera videos;
2. Vehicle mounted camera videos;
3. Traffic camera videos; and
4. Law enforcement incident reports.
B. A law enforcement agency may charge a record copying fee of
not more than One Dollar ($1. 00) per page and a video copying fee of
not more than Fifty Dollars ($50.00) per video when complying with
the requests of the subpoena.
SECTION 2. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 707.2 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. Every subpoena issued on behalf of or by a defendant shall
state the name of the court from which it is issued and the title of
the action.
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B. A witness shall be obli gated upon service of a subpoena to
attend a trial or hearing at any place within the state.
C. The court clerk shall issue a subpoena, or a subpoena for
the production of documentary evidence, signed and sealed but
otherwise in blank, to a party requesti ng it, who shall complete the
subpoena before service. As an officer of the court, an attorney
authorized to practice law in this state may also issue and sign a
subpoena on behalf of a court in this state.
SECTION 3. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 707. 3 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A party or an attorney responsible for the issuance and service
of a subpoena shall take reasonable steps to avoid imposing undue
burden or expense on a person subject to that subpoena. The court
on behalf of which the subpoena w as issued shall enforce this duty
and impose upon the party or attorney, or both, in breach of this
duty an appropriate sancti on, which may include, but is not limited
to, lost earnings and a reasonable attorney fee.
SECTION 4. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 707. 4 of Title 22, unless there
is created a duplication in numbering, reads as follows:
A. On timely motion, the court by which a subpoena was issued
shall quash or modify the su bpoena if it:
1. Fails to allow reasonable time for compliance;
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2. Requires a person to travel to a place beyond the limits of
the county where the person resides or is served with the subpoena;
3. Requires disclosure of privileged or other protected matter
and no exception or waiver applies ;
4. Subjects a person to undue burden ; or
5. Requires production of books, papers, d ocuments, or tangible
things that fall outside the scope of discovery permitted by Section
3226 of Title 12 of the Oklahoma Statut es.
B. If a subpoena:
1. Requires disclosure of a trade secret or other confidential
research, development, or commercial in formation; or
2. Requires disclosure of the opinion of an unretained expert
or information not describing specific events or occurrences in
dispute and resulting from the study by the expert made not at the
request of any party, the court may, to protect a person subject to
or affected by the subpoena, quash or modify the subpoena. However,
if the party in whose behalf the subpoena is issued shows a
substantial need for the testimony or material that cannot be
otherwise met without undue hardship and assu res that the person to
whom the subpoena is addressed will be reasonably compensated, the
court may order appearance or production only upon specified
conditions.
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SECTION 5. NEW LAW A new section of law to be codified
in the Oklahoma Statutes as Section 707. 5 of Title 22, unless there
is created a duplication in numbering, reads as follows:
Subpoenas issued in accordance with the provisions of Sections
707.1 through 707.3, 708, 710 and 712 of Title 22 of the Oklahoma
Statutes shall be considered separate and distinct from any right or
obligation provided for in Section 2002 of Title 22 of the Oklahoma
Statutes.
SECTION 6. AMENDATORY 22 O.S. 2021, Section 708, is
amended to read as follows:
Section 708. A subpoena, authorized by the last four sections
provisions of Sections 704, 705, 706, 707 , and 707.1 of this title,
must be substantially in the following form:
IN THE NAME OF THE STATE OF
OKLAHOMA.
To ......... ,
Greeting: You are commanded to appear before C. D., a justice
of the peace of ........ at ....... (or the grand jury of the county
County of ......... or the district court of ......... county
County, or other location as the case may be specified), on the
........ (stating day and hour), and remain in attendance on and
call of said ........ from day to day and term to term until
lawfully discharged, as a witness in a criminal action prosecuted by
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the State of Oklahoma against E. F. (or to testify as the case may
be).
SECTION 7. AMENDATORY 22 O.S. 2021, Section 710, is
amended to read as follows:
Section 710. A. If the books, papers or documents be required,
a direction to the following effect must be continued in the
subpoena:
And you are required also to bring with you th e following:
(Describe intelligently the books, papers or documents required).
B. A copy of any subpoena that commands production of documents
and things or inspection of premises before trial shall be served on
each party in the manner prescribed by subs ection B of Section 2005
of Title 12 of the Oklahoma Statutes. If the subpoena commands
production of documents and things or inspection of premises from a
nonparty before trial but does not require attendance of a witness,
the subpoena shall specify a da te and location for the production or
inspection that is at least seven (7) days after the date that the
subpoena and copies of th e subpoena are served on the witness and
all parties, and the subpoena shall include the following language:
"In order to allow objections to the production of documents and
things to be filed, you should not produce them until the date
specified in this subpoena, and if an objection is filed, until the
court rules on the objection. "
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C. A person commanded to produce and permit i nspection,
copying, testing or sampling of designated books, papers, documents,
electronically stored information or tangible thin gs, or inspection
of premises need not appear in person at the place of production or
inspection unless commanded to appear fo r deposition, hearing , or
trial.
D. Subject to subsection F of this section, a person commanded
to produce and permit inspection, copying, testing or sampling , or
any party may, within fourteen (14) days after service of the
subpoena or before the time sp ecified for compliance if such time is
less than fourteen (14) days after service, serve written objection
to inspection, copying, testing, or sampling of any or all of the
designated materials or of the premises, or to producing
electronically stored info rmation in the form or forms requested.
An objection that all or a portion of the requested material will or
should be withheld on a claim that it is privileged or subject to
protection as trial preparation materials shall be made within this
time period and in accordance with subsection s E and F of this
section. If the objection is made by the witness, the witness shall
serve the objection on all parties; if objection is made by a party,
the party shall serve the objection on the witness and all other
parties. If objection is made, the party serving the subpoena shall
not be entitled to inspect, copy, test , or sample the materials or
inspect the premises except pursuant to an order of the court by
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which the subpoena was issued. For failure to object in a timely
fashion, the court may assess reasonable costs and attorney fees or
take any other action it deems proper; however, a pri vilege or the
protection for trial preparation materials shall not be waived
solely for a failure to timely object under this section. If
objection has been made, the party serving the subpoena may, upon
notice to the person commanded to produce, move at any time for an
order to compel the production. Such an order to compel production
shall protect any person who is not a part y or an officer of a party
from significant expense resulting from the inspection and copying
commanded.
E. 1. A person respondi ng to a subpoena to produce documents
shall produce them as they are kept in the usual course of business
or shall organize an d label them to correspond with the categories
in the demand.
2. If a subpoena does not specify the form or forms for
producing electronically stored information, a person responding to
a subpoena shall produce the information in a form or forms in which
the person ordinarily maintains it or in a form or forms that are
reasonably usable.
3. A person responding to a subpoena is not required to produce
the same electronically stored information in more than one form.
4. A person responding to a subpoena is not required to provide
discovery of electronically stored information from sources that the
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person identifies as not reasonably accessible because of undue
burden or cost. If such showing is made, the court may order
discovery from such sources if the r equesting party shows good
cause, considering the limitations of subparagraph c of paragraph 2
of subsection B of Section 3226 of Title 12 of the Oklahoma
Statutes. The court may specify conditions for the discovery.
F. 1. When information subject to a subpoena is withheld on a
claim that it is privileged or subject to protection as trial
preparation materials, the claim shall be made expressly and shall
be supported by a description of the nature of the documents,
communications, or things not produced that is sufficient to enable
the demanding party to contest the claim.
2. If information is produced in response to a subpoena th at is
subject to a claim or privilege or of protection as trial
preparation material, the person making the claim may notify a ny
party that received the information of the claim and the basis for
such claim. After being notified, a party shall promptly return,
sequester, or destroy the specified information and any copies the
party has and may not use or disclose the information until the
claim is resolved. A receiving party may promptly present the
information to the court under seal for a determination of the
claim. If the receiving party disclosed the information before
being notified, such party shall take reasonable steps to retrieve
the information. The person who produced the information shall
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preserve the information until the claim is resolved. This
mechanism is procedural only and does not alter the standards
governing whether the information is privileged or subject to
protection as trial preparation material or whether such privilege
or protection has been waived.
SECTION 8. AMENDATORY 22 O.S. 2021, Section 712, is
amended to read as follows:
Section 712. A. Service of subpoenas for witnesses in criminal
actions in the district courts of this state a subpoena upon a
person named therein shall be made in the same manner as in civil
actions pursuant to Section 2004.1 of Title 12 of the Oklahoma
Statutes by delivering or mailing a copy thereo f to such person and,
if the attendance of the person is demanded, by tendering to that
person the fees for one (1) day of attenda nce and the mileage
allowed by law. Service of a subpoena may be accomplished by any
person who is eighteen (18) years of age or older.
B. Service of a subpoena by mail may be accomplished by mailing
a copy thereof by certified mail with return receipt requested and
delivery restricted to the person named in the subpoena. The person
serving the subpoena shall make proof of ser vice thereof to the
court promptly, and in any event, before the witness is required to
testify at the hearing or trial. If service is made by a person
other than a peace officer, such person shall make affidavit
thereof. If service is by mail, the perso n serving the subpoena
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shall show in the proof of service the date and place of mailing and
attach a copy of the return receipt showing that the mailing was
accepted. Failure to make proof of service does not affect the
validity of the service, but servic e of a subpoena by mail shall not
be effective if the mailing was not accepted by the person named in
the subpoena. The cost costs of service of subpoenas shall be borne
by the parties unless otherwise ordered by the court allowed whether
service is made by a peace officer or any other person .
SECTION 9. AMENDATORY 22 O.S. 2021, Section 715, is
amended to read as follows:
Section 715. A. No person is obliged to attend as a witness
before a court or magistrate outside the county where the witness
resides or is served with a subpoena, unless the judge of the court
in which the offense is triable, upon an aff idavit of the district
attorney, or of the defendant or the defendant 's counsel, stating
that he or she believes that the evid ence and attendance of the
witness is material and necessary, shall endorse on the subpoena an
order for the attendance of the witness.
B. The court clerks of this state shall not be subject to
subpoena in matters relating to court records unless the court makes
a specific finding that the appearance and testimony of the court
clerk are both material and necessary because of a writt en objection
to the introduction of certified documents court records made by the
defendant or other party prior to trial.
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SECTION 10. AMENDATORY 22 O.S. 2021, Section 716, is
amended to read as follows:
Section 716. Disobedience or failure by any person without
adequate excuse to obey a subpoena served upon himself or herself ,
or a refusal to be sworn o r to testify, may be punished by the court
or magistrate, as for deemed a criminal contempt, in the manner
provided in civil proce dure of the court from which the subpoena was
issued.
SECTION 11. This act shall become effective November 1, 2024.
COMMITTEE REPORT BY: COMMITTEE ON JUDICIARY
April 9, 2024 - DO PASS