Rule 45
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Rule 45 of the Federal Rules of Civil Procedure sets forth the rules for the depositions of third parties in litigation:
(a) In General.
(1) Form and Contents.
(A) Requirements--In General. Every subpoena must:
(i) state the court from which it issued;
(ii) state the title of the action, the court in which it is pending, and its
civil-action number;
(iii) command each person to whom it is directed to do the following at a
specified time and place: attend and testify; produce designated documents,
electronically stored information, or tangible things in that person's possession,
custody, or control; or permit the inspection of premises; and
(iv) set out the text of Rule 45(c) and (d).
(B) Command to Attend a Deposition--Notice of the Recording Method. A subpoena
commanding attendance at a deposition must state the method for recording the testimony.
(C) Combining or Separating a Command to Produce or to Permit Inspection; Specifying
the Form for Electronically Stored Information. A command to produce documents,
electronically stored information, or tangible things or to permit the inspection of
premises may be included in a subpoena commanding attendance at a deposition, hearing,
or trial, or may be set out in a separate subpoena. A subpoena may specify the form or
forms in which electronically stored information is to be produced.
(D) Command to Produce; Included Obligations. A command in a subpoena to produce
documents, electronically stored information, or tangible things requires the responding
party to permit inspection, copying, testing, or sampling of the materials.
(2) Issued from Which Court. A subpoena must issue as follows:
(A) for attendance at a hearing or trial, from the court for the district where the
hearing or trial is to be held;
(B) for attendance at a deposition, from the court for the district where the
deposition is to be taken; and
(C) for production or inspection, if separate from a subpoena commanding a person's
attendance, from the court for the district where the production or inspection is to be
made.
(3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank, to a
party who requests it. That party must complete it before service. An attorney also may
issue and sign a subpoena as an officer of:
(A) a court in which the attorney is authorized to practice; or
(B) a court for a district where a deposition is to be taken or production is to be
made, if the attorney is authorized to practice in the court where the action is pending.
(b) Service.
(1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas. Any person who is at
least 18 years old and not a party may serve a subpoena. Serving a subpoena requires
delivering a copy to the named person and, if the subpoena requires that person's
attendance, tendering the fees for 1 day's attendance and the mileage allowed by law.
Fees and mileage need not be tendered when the subpoena issues on behalf of the United
States or any of its officers or agencies. If the subpoena commands the production of
documents, electronically stored information, or tangible things or the inspection of
premises before trial, then before it is served, a notice must be served on each party. (2) Service in the United States. Subject to Rule 45(c)(3)(A)(ii), a subpoena may be
served at any place: (A) within the district of the issuing court; (B) outside that district but within 100 miles of the place specified for the
deposition, hearing, trial, production, or inspection; (C) within the state of the issuing court if a state statute or court rule allows
service at that place of a subpoena issued by a state court of general jurisdiction
sitting in the place specified for the deposition, hearing, trial, production, or
inspection; or (D) that the court authorizes on motion and for good cause, if a federal statute so
provides. (3) Service in a Foreign Country. 28 U.S.C. § 1783 governs issuing and serving a
subpoena directed to a United States national or resident who is in a foreign country. (4) Proof of Service. Proving service, when necessary, requires filing with the issuing
court a statement showing the date and manner of service and the names of the persons
served. The statement must be certified by the server.
(c) Protecting a Person Subject to a Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. 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 issuing court must enforce this duty and
impose an appropriate sanction--which may include lost earnings and reasonable attorney's
fees--on a party or attorney who fails to comply. (2) Command to Produce Materials or Permit Inspection. (A) Appearance Not Required. A person commanded to produce documents, electronically
stored information, or tangible things, or to permit the inspection of premises, need not
appear in person at the place of production or inspection unless also commanded to appear
for a deposition, hearing, or trial. (B) Objections. A person commanded to produce documents or tangible things or to permit
inspection may serve on the party or attorney designated in the subpoena a written
objection to inspecting, copying, testing or sampling any or all of the materials or to
inspecting the premises--or to producing electronically stored information in the form or
forms requested. The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made, the following
rules apply: (i) At any time, on notice to the commanded person, the serving party may move the
issuing court for an order compelling production or inspection. (ii) These acts may be required only as directed in the order, and the order must
protect a person who is neither a party nor a party's officer from significant expense
resulting from compliance. (3) Quashing or Modifying a Subpoena. (A) When Required. On timely motion, the issuing court must quash or modify a subpoena
that: (i) fails to allow a reasonable time to comply; (ii) requires a person who is neither a party nor a party's officer to travel more
than 100 miles from where that person resides, is employed, or regularly transacts business
in person--except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to
attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception
or waiver applies; or (iv) subjects a person to undue burden. (B) When Permitted. To protect a person subject to or affected by a subpoena, the
issuing court may, on motion, quash or modify the subpoena if it requires: (i) disclosing a trade secret or other confidential research, development, or
commercial information; (ii) disclosing an unretained expert's opinion or information that does not describe
specific occurrences in dispute and results from the expert's study that was not requested
by a party; or (iii) a person who is neither a party nor a party's officer to incur substantial
expense to travel more than 100 miles to attend trial. (C) Specifying Conditions as an Alternative. In the circumstances described in Rule
45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance
or production under specified conditions if the serving party: (i) shows a substantial need for the testimony or material that cannot be otherwise
met without undue hardship; and (ii) ensures that the subpoenaed person will be reasonably compensated.
(d) 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 to produce documents must produce
them as they are kept in the ordinary course of business or must 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 must 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 need not
provide discovery of electronically stored information form sources that the person
identifies as not reasonably accessible because of undue burden or cost. On motion to
compel discovery or for a protective order, the person responding must show that the
information is not reasonably accessible because of undue burden or cost. 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(b)(2)(C). 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 must: (i) expressly make the claim; and (ii) describe the nature of the withheld documents, communications, or tangible
things in a manner that, without revealing information itself privileged or protected,
will enable the parties to assess the claim. (B) Information 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. After being notified, a party must promptly return, sequester, or destroy the
specified information and any copies it has; must not use or disclose the information until
the claim is resolved; must take reasonable steps to retrieve the information if the party
disclosed it before being notified; and may promptly present the information to the court
under seal for a determination of the claim. The person who produced the information must
preserve the information until the claim is resolved.
(e) Contempt.
The issuing court may hold in contempt a person who, having been served, fails without
adequate excuse to obey the subpoena. A nonparty's failure to obey must be excused if the
subpoena purports to require the nonparty to attend or produce at a place outside the
limits of Rule 45(c)(3)(A)(ii).