South Dakota Subpoena
Since January 2023 every South Dakota subpoena must carry a bold all-caps warning block above the signature, and the witness is owed $20 a day plus mileage at the state finance rate. Attorney review available.
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Introduction
South Dakota decided in 2023 that recipients were not taking subpoenas seriously enough, and wrote the fix into the rule. SDCL 15-6-45(a) now requires that every subpoena carry a block of bold capitalised text immediately above the issuer's signature: YOU SHOULD TREAT THIS DOCUMENT AS YOU WOULD A COURT ORDER, followed by a contempt and sanctions warning, a pointer to the recipient's obligations and rights in SDCL 15-6-45(b) through (g), and a suggestion that they contact an attorney. That block came in with Supreme Court Rule 22-13, effective January 1, 2023, and a South Dakota subpoena issued without it is missing a required element. Issuance is wide open by national standards. Clerks of courts, judges, magistrates, notaries public, referees, and other public officers empowered by SDCL 1-26-19.1 may all issue, and so may any attorney of record admitted in South Dakota and in good standing on the active list of the State Bar, provided that attorney contemporaneously sends a copy to the clerk to be filed as a public record of the action. On money, SDCL 19-5-1 gives each witness twenty dollars for each day's attendance before any court, board, or tribunal, plus mileage at the rate established under SDCL 3-9-1, limited to each mile actually and necessarily traveled. And under SDCL 15-6-45(c), if those fees and mileage are not paid or waived at service the witness is not obliged to obey the subpoena at all. DocDraft drafts the South Dakota subpoena with the warning block and the tender line in place, and attorney review is available before you serve it.
Key Things to Know
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A South Dakota subpoena is a command issued in a pending matter requiring a person to attend and give testimony at a stated time and place, or to produce designated books, papers, documents or tangible things, and it must state the court or tribunal, the title of the action, and the person or party for whom the testimony is required (SDCL 15-6-45(a)).
- 2
The South Dakota witness fee is twenty dollars for each day's attendance before any court, board, or tribunal in any civil or criminal case (SDCL 19-5-1). No person may receive witness fees while serving a period of incarceration at the time they appear.
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South Dakota mileage is set by reference, not by a fixed figure: the rate established pursuant to SDCL 3-9-1, limited to each mile actually and necessarily traveled. Section 3-9-1 fixes the maximum at fifty-one cents per mile or the IRS standard business mileage rate as of October first each year, whichever is greater, rounded up to the nearest penny.
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Every South Dakota subpoena must include a bold capitalised warning block immediately above the signature, telling the recipient to treat the document as a court order and pointing to SDCL 15-6-45(b) through (g) (SDCL 15-6-45(a), effective January 1, 2023).
- 5
Clerks of courts, judges, magistrates, notaries public and referees may issue a South Dakota subpoena, and so may an attorney of record in good standing on the active list of the State Bar of South Dakota, who must contemporaneously transmit a copy to the clerk for filing as a public record (SDCL 15-6-45(a)).
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Fees for one day's attendance and the mileage allowed by law must be tendered at the time of service, the payment or signed waiver must be stated in the return, and if they are not paid or waived the witness is not obliged to obey (SDCL 15-6-45(c)).
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Before a documents subpoena is served on the person directed, a notice and copy of it must be served on each party to the matter pending (SDCL 15-6-45(b)).
Key decisions before you file
Before you file a Subpoena in South Dakota, a few decisions shape the document: which option to choose and what each one means. The Subpoena guide walks through them.
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South Dakota Requirements for Subpoena
Witness Fee of $20 a Day
Each witness receives twenty dollars for each day attendance before any court, board, or tribunal in any civil or criminal case (SDCL 19-5-1). No person may receive witness fees while serving a period of incarceration in a state, county, or municipal facility at the time that person appears.
Mileage at the State Board of Finance Rate
Mileage is paid at such rate as may be established pursuant to SDCL 3-9-1 and is limited to each mile actually and necessarily traveled (SDCL 19-5-1). Section 3-9-1 sets the maximum at fifty-one cents per mile or the IRS standard business mileage rate as of October first each year, whichever is greater, rounded up to the nearest penny.
Mandatory Bold All-Caps Warning Block
SDCL 15-6-45(a) requires a block in bold capitalized type immediately above the signature, beginning YOU SHOULD TREAT THIS DOCUMENT AS YOU WOULD A COURT ORDER and pointing the recipient to SDCL 15-6-45(b) through (g). Added by Supreme Court Rule 22-13, effective January 1, 2023, so pre-2023 templates are out of date.
Notaries, Magistrates and Attorneys May Issue
Clerks of courts, judges, magistrates, notaries public, referees and other public officers empowered by SDCL 1-26-19.1 may issue on application. So may any attorney of record admitted in South Dakota and in good standing on the active list of the State Bar, for a witness or for production, inspection and copying of records (SDCL 15-6-45(a)).
Attorney-Issued Copy Goes to the Clerk
When an attorney issues a subpoena the attorney must contemporaneously transmit a copy to the clerk of the court or the filing officer of the tribunal, who files it as one of the public records of the action. The subpoena issues in the name of the presiding officer and is attested and signed by the attorney (SDCL 15-6-45(a)).
Tender at Service or the Witness Need Not Obey
At the time of service, fees for one day attendance and the mileage allowed by law must be tendered, and the payment or signed waiver must be stated in the return. If they are not paid or waived the witness is not obliged to obey. Each day after the first the witness may demand that day fees and need not remain if unpaid (SDCL 15-6-45(c)).
Notice to Every Party Before Serving for Records
Before a subpoena commanding production of documentary evidence is served on the person directed, a notice and copy of the subpoena must be served on each party to the matter pending (SDCL 15-6-45(b)). The recipient then has ten days after service to serve written objection, or until the compliance date if that is sooner (SDCL 15-6-45(d)(1)).
County Limits and Contempt
A resident may be required to attend an examination only in the county of residence, employment or in-person business, and a nonresident only in the county where served, absent a court order fixing another place (SDCL 15-6-45(d)(2)). Failure without adequate excuse may be deemed contempt of the court where the action is pending or that issued the subpoena (SDCL 15-6-45(f)).