Obtaining Documents (Including ESI) Through a Subpoena Duces Tecum

In Colorado, can you obtain documents from an individual or company by serving a subpoena duces tecum without taking a records deposition?  The answer used to be no, according to a June 18th, 2012 ruling of the Colorado Supreme Court.  See In re Marriage of Wiggins, 279 P.3d 1 (Colo. 2012).

However, the Colorado Supreme Court has approved a change to C.R.C.P. 45 (see text of new Rule 45 here), which will take effect January 1, 2013.  The new Rule 45 will allow parties to compel by subpoena (1) appearance at a deposition, (2) production of records or other items, or (3) both.  Accordingly, the plain text of Rule 45 now permits a subpoena for records alone, without simultaneously noticing a records deposition.  This change will greatly streamline the non-party discovery process in Colorado state courts.

Perhaps just as importantly, the new Rule 45 expressly permits subpoenas of records "in physical or electronic form." In contrast, the old Rule 45 simply permitted a request for production of "books, papers, documents, or tangible things designated therein."  While a subpoena for ESI was arguably still permissible under the old rule, it was likely to result in an objection and a fight.  The new rule plainly supports a subpoena for emails, digital images, word processing files, spreadsheets, etc. in their native format, as well as text messages, voicemail messages, etc.