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, or permit inspection of premises, in the
possession, custody or control of that person 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 for the Superior Court may issue from the court in any
county, and for the District Court from the court in any district.
(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 admitted to
the Maine Bar may also issue and sign a subpoena as officer of the court.
(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, including the attorney of a party. 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. Prior
notice of any commanded production of documents and things or inspection of
premises or the appearance of a witness in discovery or pretrial proceedings shall
be served on each party in the manner prescribed by Rule 5(b) at least 14 days
prior to the response date set forth in the subpoena. A party shall have 7 days to
object to a discovery or pretrial subpoena and to arrange for the determination of
the objection by the court. Subpoenas commanding the appearance of a witness or
the production of documents or things at trial or hearing shall be served on each
party in the manner prescribed by Rule 5(b).
(2) A subpoena may be served at any place within the state.
(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 for 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, a
reasonable attorney fee, and other reasonable expenses incurred in seeking the
sanction.
(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 a 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 any justice or judge of
the court for 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 for which a subpoena was issued
shall quash or modify the subpoena if it
(i) fails to allow a reasonable time for compliance;
(ii) requires a resident of this state who is not a party or an
officer of a party to travel to attend a deposition outside the county
wherein that person resides or is employed or transacts business in
person or a distance of more than 100 miles one way, whichever is
greater, unless the court otherwise orders; requires a nonresident of
the state who is not a party or an officer of a party to attend outside
the county wherein that person is served with a subpoena, or farther
than 100 miles from the place of service, unless some other
convenient place is fixed by an order of court;
(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 one way 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 otherwise be 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 a 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) Motions and Objections. Motions or objections concerning subpoenas
issued in discovery or pretrial proceedings shall be made under Rule 26(g).
Motions or objections concerning subpoenas issued to command appearance or
production of documents or tangible things at trial or hearing shall promptly be
directed first to the judge or justice presiding at such trial or hearing.
(f) Contempt. Failure by any person without adequate excuse to obey a
subpoena served upon that person may be deemed a contempt of the court in which
the action is pending or in the county in which the deposition is taken. 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). Punishment for contempt under this subdivision (f) shall
be in accordance with Rule 66 and 16 M.R.S.A. § 102.
Advisory Committee Note
December 11, 2007
Subdivision (b) is amended to require that discovery subpoenas be served
sufficiently in advance to enable an opposing party to object to the subpoena and to
arrange to present the objection to the court under subdivision (e), which
incorporates the procedure under Rule 26 (g). The amendment is intended to
eliminate the sharp practice of timing the service of subpoenas during discovery so
that opposing parties have no practical opportunity to object and obtain a ruling
before the response to the subpoena is required. Since a party under this procedure
may simply object, rather than move to quash (the remedy for nonparties), a
conforming amendment is made to subdivision (e). The amendment also confirms
that trial subpoenas should be served under Rule 5. Obviously, when time is short
prior to trial, the best practice is for the serving party to alert the other parties by
means more expedient than Rule 5 or risk having to explain to the court why a
telephone call, fax or email could not have been sent to avoid a hurried hearing on
motions or objections to the subpoena. Objections should be promptly directed to
the court under subdivision (3).
Advisory Committee’s Notes
May 1, 1999
A new subdivision (e) has been added, re-designating the former subdivision
(e) as (f). Under the new subdivision (e), motions concerning subpoenas issued in
discovery or pretrial proceedings must be made under Rule 26(g). The purpose of
the amendment is to simplify and expedite the resolution of discovery disputes by
prohibiting written motions. If the subpoena requires a witness appearance or the
production of documents and tangible things at trial or hearing, a written motion
should be filed, directed first to the judge or justice presiding at the trial or hearing.
Advisory Committee’s Notes
March 1, 1998
Rule 45 (c) is amended to extend the reach of subpoenas to 100 miles rather
than 50 miles. This amendment brings Rule 45 into line with M.R. Civ. P. 32(a)(3)
and federal practice.
Advisory Committee’s Notes
February 15, 1996
Rule 45(a)(1)(D) is added to make clear the original intention of the 1993
amendments of Rule 45 that the text of Rules 45(c) and (d) were to be appended to
the subpoena. Forms 11.10 and 11.20, as simultaneously amended in 1993, call for
inclusion of the rule language, and the requirement is made explicit in footnotes to
those forms. The present amendment conforms the Maine rule to Federal Rule
45(a)(1)(D) and eliminates any doubt or question about the source of the
requirement.
Advisory Committee’s Notes
1993
Rule 45 is amended to adopt a 1991 amendment of Federal Rule 45. Former
Rule 45 is abrogated, but the amendment retains distinctive features of the former
rule and practice under it that are appropriate for the Maine courts. See 1 Field,
McKusick and Wroth, Maine Civil Practice § 45.7 (2d ed. 1970). By simultaneous
amendments conforming changes have been made in Forms 11.10 and 11.20 and a
new Form 11.30 has been added.
The purposes of the amendment are to clarify the organization of the rule
and to facilitate access to documentary evidence or other material, and inspection
of premises, in the possession of nonparties. The amended rule provides expanded
protection for the interests of witnesses and other nonparties.
Rule 45(a)(1), in the words of the federal Advisory Committee Note,
authorizes the issuance of a subpoena to compel a non-party to produce evidence
independent of any deposition. This revision spares the necessity of a deposition
of the custodian of evidentiary material required to be produced. A party seeking
additional production from a person subject to such a subpoena may serve an
additional subpoena requiring additional production at the same time and place.
* * * * * [The provision also] authorizes the issuance of a subpoena to
compel the inspection of premises in the possession of a non-party. Rule 34 has
authorized such inspections of premises in the possession of a party as discovery
compelled under Rule 37, but prior practice required an independent proceeding to
secure such relief ancillary to the federal proceeding when the premises were not in
the possession of a party * * * * *.
The simultaneous addition of a new Rule 34(c) makes clear that the purpose
of these amendments is to extend the production and inspection provisions of Rule
34 to nonparties. No change in the scope of production and inspection from that
under Rule 34 is intended. When the purpose is discovery, the scope is that
delineated in Rule 26(b).
Rules 45(a)(2), (3), depart from the federal rule to carry forward present
Maine practice permitting issuance of the subpoena in blank to a party by the clerk
or issuance by a member of the Maine bar. As under the prior rule, the subpoena
may issue in any county or district. The requirement that the subpoena bear the seal
of the court, which under former Rule 45(a) applied only to subpoenas issued by
the clerk, has been eliminated for all subpoenas. Only the signature of the issuing
clerk or attorney is required. Cf. F.R.Civ.P. 45(a) advisory committee’s note to
1991 amendment.
Rule 45(b) substantially retains the provisions for service presently found in
subdivisions (c) and (e). The amended rule makes clear that a party’s attorney may
make service. Because the procedure replaces the former practice of taking a
deposition with a subpoena duces tecum, paragraph (1) contains a requirement of
notice of production or inspection to other parties in order to preserve their
opportunity to object to or supplement the discovery.
Rule 45(c) is intended to protect the rights of witnesses by stating, in
paragraph (1), a general prohibition against abuse of a subpoena and giving the
court to which a subpoena is returnable broad powers to issue protective orders and
impose sanctions to assure that nonparties are protected against significant expense
and other burdens. The protective provisions are intended to track those of Rule
26(c) but are here phrased in terms reflecting the perspective of the witness. See
F.R.Civ.P. 45(c) advisory committee’s note to 1991 amendment. Consistent with
present M.R. Civ. P. 45(d)(2), the limits on travel by a deponent or trial witness are
set at 50 miles, rather than 100 miles as in the federal rule.
Rule 45(d)(1) extends to nonparties the requirements of orderly production
imposed on parties by the last paragraph of Rule 34(b). Paragraph (2) is intended
to provide a party against whom a claim of privilege has been lodged sufficient
information to resist an unjustified claim. See F.R.Civ.P. 45(d)(2) advisory
committee’s note to 1991 amendment.
Consistent with the purpose of Federal Rule 45(a)(1)(D) (not adopted in
Maine), Forms 11.10 and 11.20 have been amended to require the full text of Rules
45(c) and (d) to be appended to a subpoena, and a similar provision has been made
in new Form 11.30. See Advisory Committee’s Notes to those forms.
Rule 45(e) retains the provision for contempt presently found in Rule 45(f),
with the addition of language expressly recognizing that disobedience of a
subpoena calling for attendance or production outside the geographical limits of
new Rule 45(c)(3)(A)(ii) is not a contempt.
Advisory Committee's Note
October 1, 1970
By a procedure that is analogous to that provided in amended Rule 34, Rule
45(d)(1) is amended to make clear that a subpoena duces tecum issued for taking a
deposition may command the person to whom it is directed, not only to produce,
but also to permit inspection and copying of designated books, papers, etc. The
person to whom the subpoena is directed has ten days within which to object. In
the event of such objection, the party serving the subpoena is required to go
forward in seeking a court order that he be permitted to inspect the copies.
Advisory Committee's Note
December 31, 1967
As the terms of trial justices expire, their functions, civil as well as criminal,
are taken over by the District Court (1961 Laws, c. 386, § 1; 4 M.R.S.A. § 152)
and any continuing purpose for the issuance of subpoenas by trial justices in civil
cases is eliminated.
Explanation of Amendment
November 1, 1966
This amendment was adopted to conform to the language of Maine Criminal
Rule 17(f) (2), by specifying that the limitation on a deponent’s travel is fifty miles
“one way.” Conformity eliminates the possibility that a different meaning might
be implied in the Civil Rule.
Reporter's Notes
December 1, 1959
This rule adopts Federal Rule 45 with minor variations. It makes the
following changes in Maine practice:
1. Equity Rule 26 and R.S.1954, Chap. 113, Sec. 23 (repealed in 1959), are
changed by permitting the issuance of a subpoena duces tecum without an order of
court. Rule 45(b) does, however, give the party served with such a subpoena the
opportunity to obtain the protection of the court.
2. Rule 45(c) in permitting service of a subpoena by any person seems to
change the law in the statute books, but it is in keeping with existing Maine
practice, as evidenced by 1 Sullivan, Maine Civil Officer 427, where there appears
a form of affidavit when service is made by a person other than an officer.
3. Rule 45(d) (2) broadens existing law with respect to the distance a witness
may be required to travel to give his deposition. R.S.1954, Chap. 117, Sec. 11
(repealed in 1959), limits this distance to 30 miles. The rule uses as a limit the
county lines or a distance not exceeding 50 miles if outside the county, unless the
court otherwise orders. It seems more reasonable to require one witness to travel a
considerable distance than to force the lawyers, the notary, and the court reporter to
do so.