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Rule 45. Subpoena
(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. § 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).
Notes
NOTES TO RULE 45
HISTORY: (Amended Mar. 19, 1948; Oct. 20, 1949; July 1, 1970; Aug. 1, 1980; Aug. 1, 1985; Aug. 1, 1987; Dec. 1, 1991)
Notes of Advisory Committee on Rules.
This rule applies to subpoenas ad testificandum and duces tecum issued by the district courts for attendance at a hearing or a trial, or to take depositions. It does not apply to the enforcement of subpoenas issued by administrative officers and commissions pursuant to statutory authority. The enforcement of such subpoenas by the district courts is regulated by appropriate statutes. Many of these statutes do not place any territorial limits on the validity of subpoenas so issued, but provide that they may be served anywhere within the United States. Among such statutes are the following:
USC, Title 7, §§ 222 and 511n (Secretary of Agriculture)
USC, Title 15, § 49 (Federal Trade Commission)
USC, Title 15, §§ 77v(b), 78u(c), 79r(d) (Securities and Exchange Commission)
USC, Title 16, §§ 797(g) and 825f (Federal Power Commission)
USC, Title 19, § 1333(b) (Tariff Commission)
USC, Title 22, §§ 268, 270d and 270e (International Commissions, etc.)
USC, Title 26, § 1114 (Tax Court)
USC, Title 26, § 1523(a) (Internal Revenue Officers)
USC, Title 29, § 161 (Labor Relations Board)
USC, Title 33, § 506 (Secretary of Army)
USC, Title 35, § 24 (Patent Office proceedings)
USC, Title 38, § 133 (Veterans' Administration)
USC, Title 41, § 39 (Secretary of Labor)
USC, Title 45, § 157 Third (h) (Board of Arbitration under Railway Labor Act)
USC, Title 45, § 222(b) (Investigation Commission under Railroad Retirement Act of 1935)
USC, Title 46, § 1124(b) (Maritime Commission)
USC, Title 47, § 409(c) and (d) (Federal Communications Commission)
USC, Title 49, § 12(2) and (3) (Interstate Commerce Commission)
USC, Title 49, § 173a (Secretary of Commerce)
Note to Subdivisions (a) and (b). These simplify the form of subpoena as provided in USC, Title 28, former § 655 (Witnesses; subpoena; form; attendance under); and broaden USC, Title 28, former § 636 (Production of books and writings) to include all actions, and to extend to any person. With the provision for relief from an oppressive or unreasonable subpoena duces tecum, compare NYCPA (1937) § 411.
Note to Subdivision (c).
This provides for the simple and convenient method of service permitted under many state codes; e. g., NYCPA (1937) §§ 220, 404, J Ct Act, § 191; 3 Wash Rev Stat Ann (Remington, 1932) § 1218. Compare Equity Rule 15 (Process, by Whom Served).
FOR STATUTES GOVERNING FEES AND MILEAGE OF WITNESSES SEE:
USC, Title 28, former: § 600a (Per diem; mileage) § 600c (Amount per diem and mileage for witnesses; subsistence) § 600d (Fees and mileage in certain states) § 601 (Witnesses' fees; enumeration) § 602 (Fees and mileage of jurors and witnesses) § 603 (No officer of court to have witness fees)
Note to Subdivision (d).
The method provided in paragraph (1) for the authorization of the issuance of subpoenas has been employed in some districts. See Henning v Boyle, 112 Fed 397 (SD NY, 1901). The requirement of an order for the issuance of a subpoena duces tecum is in accordance with USC, Title 28, former § 647 (Deposition under dedimus potestatem; subpoena duces tecum). The provisions of paragraph (2) are in accordance with common practice. See USC, Title 28, former § 648 (Deposition under dedimus potestatem; witnesses, when required to attend); NYCPA (1937) § 300; 1 NJ Rev Stat (1937) 2:27-174.
Note to Subdivision (e).
The first paragraph continues the substance of USC, Title 28, former § 654 (Witnesses; subpoenas; may run into another district). Compare USC, Title 11, § 69 (Referees in bankruptcy; contempts before) (production of books and writings) which is not affected by this rule. For examples of statutes which allow the court, upon proper application and cause shown, to authorize the clerk of the court to issue a subpoena for a witness who lives in another district and at a greater distance than 100 miles from the place of the hearing or trial, see:
USC, Title 15: § 23 (Suits by United States; subpoenas for witnesses) (under antitrust laws)
USC, Title 38: § 445 (Actions on claims; jurisdiction; parties; procedure; limitation; witnesses; definitions) (Veterans' insurance contracts)
The second paragraph continues the present procedure applicable to certain witnesses who are in foreign countries. See USC, Title 28, formerly § 711 (now § 1783) (Letters rogatory to take testimony of witness, addressed to court of foreign country; failure of witness to appear; subpoena) and former § 713 (Service of subpoena on witness in foreign country).
Note to Subdivision (f).
Compare former Equity Rule 52 (Attendance of Witnesses Before Commissioner, Master, or Examiner).
Notes of Advisory Committee on 1946 and 1948 Amendments to Rules.
Note. Subdivision (b).
The added words, "or tangible things" in subdivision (b) merely make the rule for the subpoena duces tecum at the trial conform to that of subdivision (d) for the subpoena at the taking of depositions. The insertion of the words "or modify" in clause (1) affords desirable flexibility.
Subdivision (d).
The added last sentence of amended subdivision (d)(1) properly gives the subpoena for documents or tangible things the same scope as provided in Rule 26(b), thus promoting uniformity. The requirement in the last sentence of original Rule 45(d)(1)--to the effect that leave of court should be obtained for the issuance of such a subpoena--has been omitted. This requirement is unnecessary and oppressive on both counsel and court, and it has been criticized by district judges. There is no satisfactory reason for a differentiation between a subpoena for the production of documentary evidence by a witness at a trial (Rule 45(a)) and for the production of the same evidence at the taking of a deposition. Under this amendment, the person subpoenaed may obtain the protection afforded by any of the orders permitted under Rule 30(b) or Rule 45(b). See Application of Zenith Radio Corp. ED Pa, 1941, 4 Fed Rules Serv 30b.21, Case 1, 1 FRD 627; Fox v House, ED Okla, 1939, 29 F Supp 673; United States of America for the Use of Tilo Roofing Co., Inc. v J. Slotnik Co., D Conn 1944, 3 FRD 408.
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