28 USC APPENDIX - RULES OF CIVIL PROCEDURE Rule 45 01/16/96
TITLE 28 - JUDICIARY AND JUDICIAL PROCEDURE
TITLE 28 - APPENDIX
FEDERAL RULES OF CIVIL PROCEDURE
VI. TRIALS
Head
Rule 45. Subpoena
Statute
(a) Form; Issuance.
(1) Every subpoena shall
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in
which it is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and
give testimony or to produce and permit inspection and copying of
designated books, documents or tangible things in the possession,
custody or control of that person, or to permit inspection of
premises, at a time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this
rule.
A command to produce evidence or to permit inspection may be
joined with a command to appear at trial or hearing or at
deposition, or may be issued separately.
(2) A subpoena commanding attendance at a trial or hearing
shall issue from the court for the district in which the hearing
or trial is to be held. A subpoena for attendance at a
deposition shall issue from the court for the district designated
by the notice of deposition as the district in which the
deposition is to be taken. If separate from a subpoena
commanding the attendance of a person, a subpoena for production
or inspection shall issue from the court for the district in
which the production or inspection is to be made.
(3) The clerk shall issue a subpoena, signed but otherwise in
blank, to a party requesting it, who shall complete it before
service. An attorney as officer of the court may also issue and
sign a subpoena on behalf of
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district in which a deposition or production
is compelled by the subpoena, if the deposition or production
pertains to an action pending in a court in which the attorney is
authorized to practice.
(b) Service.
(1) A subpoena may be served by any person who is not a party
and is not less than 18 years of age. Service of a subpoena upon
a person named therein shall be made by delivering a copy thereof
to such person and, if the person's attendance is commanded, by
tendering to that person the fees for one day's attendance and
the mileage allowed by law. When the subpoena is issued on
behalf of the United States or an officer or agency thereof, fees
and mileage need not be tendered. Prior notice of any commanded
production of documents and things or inspection of premises
before trial shall be served on each party in the manner
prescribed by Rule 5(b).
(2) Subject to the provisions of clause (ii) of subparagraph
(c)(3)(A) of this rule, a subpoena may be served at any place
within the district of the court by which it is issued, or at any
place without the district that is within 100 miles of the place
of the deposition, hearing, trial, production, or inspection
specified in the subpoena or at any place within the state where
a state statute or rule of court permits service of a subpoena
issued by a state court of general jurisdiction sitting in the
place of the deposition, hearing, trial, production, or
inspection specified in the subpoena. When a statute of the
United States provides therefor, the court upon proper
application and cause shown may authorize the service of a
subpoena at any other place. A subpoena directed to a witness in
a foreign country who is a national or resident of the United
States shall issue under the circumstances and in the manner and
be served as provided in Title 28, U.S.C. Sec. 1783.
(3) Proof of service when necessary shall be made by filing
with the clerk of the court by which the subpoena is issued a
statement of the date and manner of service and of the names of
the persons served, certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) 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 was issued
shall enforce this duty and impose upon the party or attorney in
breach of this duty an appropriate sanction, which may include,
but is not limited to, lost earnings and a reasonable attorney's
fee.
(2)(A) A person commanded to produce and permit inspection and
copying of designated books, papers, documents or tangible
things, or inspection of premises need not appear in person at
the place of production or inspection unless commanded to appear
for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person
commanded to produce and permit inspection and copying may,
within 14 days after service of the subpoena or before the time
specified for compliance if such time is less than 14 days after
service, serve upon the party or attorney designated in the
subpoena written objection to inspection or copying of any or all
of the designated materials or of the premises. If objection is
made, the party serving the subpoena shall not be entitled to
inspect and copy the materials or inspect the premises except
pursuant to an order of the court by which the subpoena was
issued. 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
party or an officer of a party from significant expense resulting
from the inspection and copying commanded.
(3)(A) On timely motion, the court by which a subpoena was
issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a
party to travel to a place more than 100 miles from the place
where that person resides, is employed or regularly transacts
business in person, except that, subject to the provisions of
clause (c)(3)(B)(iii) of this rule, such a person may in order
to attend trial be commanded to travel from any such place
within the state in which the trial is held, or
(iii) requires disclosure of privileged or other protected
matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other
confidential research, development, or commercial information,
or
(ii) requires disclosure of an unretained expert's opinion or
information not describing specific events or occurrences in
dispute and resulting from the expert's study made not at the
request of any party, or
(iii) requires a person who is not a party or an officer of a
party to incur substantial expense to travel more than 100
miles to attend trial, the court may, to protect a person
subject to or affected by the subpoena, quash or modify the
subpoena or, 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 assures
that the person to whom the subpoena is addressed will be
reasonably compensated, the court may order appearance or
production only upon specified conditions.
(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents
shall produce them as they are kept in the usual course of
business or shall organize and label them to correspond with the
categories in the demand.
(2) 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.
(e) Contempt. Failure by any person without adequate excuse to
obey a subpoena served upon that person may be deemed a contempt of
the court from which the subpoena issued. An adequate cause for
failure to obey exists when a subpoena purports to require a
non-party to attend or produce at a place not within the limits
provided by clause (ii) of subparagraph (c)(3)(A).
Source
(As amended Dec. 27, 1946, eff. Mar. 19, 1948; Dec. 29, 1948,
eff. Oct. 20, 1949; Mar. 30, 1970, eff. July 1, 1970; Apr. 29,
1980, eff. Aug. 1, 1980; Apr. 29, 1985, eff. Aug. 1, 1985; Mar.
2, 1987, eff. Aug. 1, 1987; Apr. 30, 1991, eff. Dec. 1, 1991.)
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