Me. R. Civ. P. 45
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.
Me. R. Civ. P. 45
Advisory Committee Note
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 - 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 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 - 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 - 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.
Annotations:
Rule 45(b)(1): Fee payment. In re Kayla S., 2001 ME 79, 6-8.