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Massachusetts Civil Procedure Rule 45: Subpoena

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(a) For Attendance of Witnesses; Form; Issuance. Every subpoena shall be issued by the clerk of court, by a notary public, or by a justice of the peace, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The clerk, notary public, or justice of the peace shall issue a subpoena, or a subpoena for the production of documentary evidence, signed but otherwise in blank, to a party requesting it, who shall fill it in before service.

(b) For Production of Documentary Evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents, electronically stored information, or tangible things designated therein. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, electronically stored information, or tangible things.

(c) Service. 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, or by exhibiting it and reading it to him, or by leaving a copy at his place of abode; and by tendering to him 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 the Commonwealth or a political subdivision thereof, or an officer, or agency of either, fees and mileage need not be tendered.

(d) Subpoena for Taking Deposition; Place of Examination.

(1) No subpoena for the taking of a deposition shall be issued prior to the service of a notice to take the deposition.

The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents, electronically stored information or tangible things which constitute or contain evidence relating to any of the matters within the scope of the examination permitted by these rules, but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this rule.

A deposition subpoena upon a party which commands the production of documents, electronically stored information or things must give the party deponent at least thirty days for compliance after service thereof. Such subpoena shall not require compliance of a defendant within 45 days after service of the summons and complaint on that defendant. The court may allow a shorter or longer time.

The person to whom the subpoena is directed may within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service, serve upon the attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may if objection has been made, move upon notice to the deponent for an order at any time before or during the taking of the deposition.

(2) Unless the court orders otherwise, a resident of this Commonwealth shall not be required to attend an examination at a place more than 50 airline miles distant from either his residence, place of employment, or place of business, whichever is nearest to the place to which he is subpoenaed. A non-resident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court.

(e) Subpoena for a Hearing or Trial. At the request of any party subpoenas for attendance at a hearing or trial shall be issued by any of the persons directed in subdivision (a) of this rule. A subpoena requiring the attendance of a witness at a hearing or trial may be served at any place within the Commonwealth.

(f) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena that requires production of documents shall produce them as they are kept in the ordinary course of business or shall organize and label them to correspond to the categories in the demand.

(B) Form for producing electronically stored information not specified. If a subpoena does not specify a form for producing electronically stored information, the person responding shall produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically stored information produced in only one form. The person responding need not produce the same electronically stored information in more than one form.

(D) Inaccessible electronically stored information. The person responding may object to the discovery of inaccessible electronically stored information, and any such objection shall specify the reason that such discovery is inaccessible. On motion to compel or for a protective order, the person claiming inaccessibility bears the burden of showing inaccessibility. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(f)(4)(C) and (D). The court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information withheld. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material shall make the claim expressly and provide information that will enable the parties to assess the claim. A privilege log need not be prepared.

(B) Information mistakenly produced. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. The provisions of Rule 26(b)(5)(B) and (C) are applicable.

(3) Further Protection. Any person subject to a subpoena under this rule may move the court:

(A) for a protective order under rule 26(c) or

(B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.

(g) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court in which the action is pending.

Amended August 3, 1982, effective January 1, 1983; November 17, 1986, effective January 1, 1987; September 24, 2013, effective January 1, 2014.

Reporter's Notes

(2014) The 2014 amendments to Rule 45 were part of a series of amendments concerning discovery of electronically stored information. For background, see the 2014 Reporter's Notes to Rule 26.

The 2014 amendments relating to electronically stored information have resulted in a number of changes to Rule 45.

Language has been added to Rule 45(b) recognizing a duty on the party issuing a subpoena to "take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena." This language makes the Massachusetts rule similar to its federal counterpart. It is a recognition of the burden involving time and expense that a subpoena imposes upon a third person, often with no stake in the outcome and often without counsel. Although this provision has been added in connection with amendments that relate to electronic discovery, the requirement of taking steps to avoid undue burden and expense is not limited to subpoenas involving electronically stored information.

References to "electronically stored information" have been added to Rule 45(b) and (d).

Existing Rule 45(f) (contempt) has been redesignated as Rule 45(g).

Rule 45(f), taken from Rule 45(d) of the Federal Rules of Civil Procedure, has been added. Rule 45(f) sets forth procedures applicable to producing documents, including electronically stored information.

Rule 45(f)(2) is modeled after Rule 45(d)(2)(A) of the Federal Rules of Civil Procedure, but with the added proviso that a person subpoenaed need not prepare a privilege log, a recognition of the burden that otherwise would be imposed on a non-party claiming a privilege.

Rule 45(f)(2)(B), dealing with information mistakenly produced that is subject to a claim of privilege or protection, incorporates the "clawback" provisions and procedures set forth in Rule 26(b)(5)(B) and (C).

(2008): In 2008, Rule 26(b)(5) was amended to require the production of a privilege log by a party who makes a claim of privilege or protection in response to a discovery request. The requirement of a privilege log applies to a claim of privilege or right to protection asserted by a party only. Rule 26(b)(5) imposes no obligation to produce a privilege log on the part of a non-party who withholds information after service of a subpoena for the production of documentary evidence under Rule 45(b), although a court would appear to have authority to order preparation of a log.

(1986) This amendment makes clear that a deposition subpoena can require, in addition to production, permission to inspect and copy designated books, papers, documents, or tangible things. The amendment brings the Massachusetts Rule closer to the wording of Fed.R.Civ.P. 45(d).

(1983) This amendment makes clear that one cannot circumvent the time periods in Rule 30(b)(5) and Rule 34(b) by serving a deposition subpoena duces tecum on another party. A subpoena is unnecessary to compel a party to appear or to produce documents at a party's deposition. See Rules 37(d) and 30(b)(5).

(1973) Rule 45 closely follows Federal Rule 45 with changes to coincide with prior Massachusetts practice. In these Rules, the word "subpoena" is the equivalent of "witness summons" in prior Massachusetts practice. The word "summons" in these Rules always means "summons of complaint." The first sentence of Rule 45(a) embodies the provisions of G.L. c. 233, § 1:

A clerk of a court of record, or notary public or a justice of the peace may issue summonses for witnesses in all cases pending before courts. . . .

Rule 45(b) incorporates the familiar Massachusetts practice of issuing subpoenas duces tecum. The rule specifically allows the subpoena to be used to command the production of books, papers, documents or tangible things. The section incorporates a protective device on behalf of the person to whom the subpoena is addressed. By motion made promptly, the producent can have the court modify or quash the subpoena if it is unreasonable and oppressive, or require the party seeking the production to pay the costs thereof. Quashing or modifying a subpoena which is unreasonable is well established in Massachusetts practice. See Finance Commission of the City of Boston v. McGrath, 343 Mass. 754, 765 (1962); Bull v. Loveland, 27 Mass. 9 (1830). Observe the relation between Rule 45(b) and Rule 26(c), which gives the person served with a notice for the taking of a deposition the right to move the court for appropriate relief, including an order that the deposition may not be taken or that it may be taken only at some designated place, or that the scope of inquiry be limited. Rule 45(b)(1) gives a non-party under a subpoena duces tecum the right to seek a protective order. Without the language of Rule 45(b)(1), a non-party subpoenaed merely to force the production of documents (as, for example, the custodian of records of a hospital) would not be explicitly empowered to seek appropriate court relief-, indeed, the silence of the rules on the point might be interpreted to mean that he has no such right. The language of Rule 45(b)(1) is designed to eliminate all such confusion.

Rule 45(c) allows service of a subpoena to be made by any non-party who is over 18 years of age. This accords with G.L. c. 238, § 2 which allows service of a summons to be made "by an officer qualified to serve civil process or by a disinterested person." Both statute and rule thus permit service by a party's attorney. Although permissible, this practice may be unwise cf. ABA, Canons of Professional Ethics, Canon 19; ABA Code of Professional Responsibility DR 5-102; EC 5-9, 5-10.

Rule 45(c) permits service to be made in accordance with pre-rule Massachusetts practice. See G.L. c. 233, § 2. The requirement that the fees be tendered to the witness accords with G.L. c. 233, § 3:

No person shall be required to attend as a witness in a civil case . . . unless the legal fees for one day's attendance and for travel to and from the place where he is required to attend are paid or tendered to him.

Rule 45(d) provides the mechanism for using a subpoena to compel the attendance of a witness at a deposition. It also permits the subpoena to be used to compel the deponent to produce at the deposition designated papers, documents, books or tangible things. Such use of a subpoena is not intended to circumvent whatever good-cause-for-production requirements may remain in the discovery rules, at least as to parties. Rule 45(d)(1) indeed gives a non-party deponent substantially all the objection-rights of a party. A subpoena for the attendance of a witness at a deposition may not be issued without a showing that service of notice to take a deposition as provided for in the discovery rules has been made.

Rule 45(d)(1) regulates the place-of-taking-of in Massachusetts depositions only. It does not attempt to regulate the problem of enforcement of subpoenas out-of-state. Whether the state will honor a Massachusetts subpoena is a question that depends on reciprocal arrangements between Massachusetts and the state in question, and must be resolved ad hoc. Presumably, the state enforcing the Massachusetts subpoena will in its order of enforcement make explicit the place where the deposition is to be taken. An in-state deponent may not be summoned to a deposition more than 50 miles from where he lives or works. The mileage is specified in airline (i.e., straight-line) terms in order to obviate disputes over road distances.

Rule 45(e) provides that a subpoena shall issue as a matter of course upon the request of any party. This section is applicable to bearings as well as trials and follows pre-rule Massachusetts practice. See G.L. c. 233, §§ 1, 7, 8.

Rule 45(f) likewise works no change in Massachusetts practice; it preserves the existing law as to penalties for failure to comply with the requirements of a subpoena. Failure of a party to submit to discovery is also punishable by an appropriate order under Rule 37.