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RULE 45. SUBPOENA

July 25, 2011

RULE 45.01: FOR ATTENDANCE OF WITNESSES — FORM — ISSUANCE.

Every subpoena shall be issued by the clerk, 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 the time and place and for the party therein specified. The clerk 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. [As amended by order entered January 26, 1999, effective July 1, 1999 and by order entered January 28, 2000, effective July 1, 2000.]

RULE 45.02: FOR PRODUCTION OF DOCUMENTS AND THINGS OR INSPECTION OF PREMISES.

A subpoena may command a person to produce and permit inspection, copying, testing, or sampling of designated books, papers, documents, electronically stored information, or tangible things, or inspection of premises with or without commanding the person to appear in person at the place of production or inspection. When appearance is not required, such a subpoena shall also require the person to whom it is directed to swear or affirm that the books, papers, documents, electronically stored information, or tangible things are authentic to the best of that person’s knowledge, information, and belief and to state whether or not all books, papers, documents, electronically stored information, or tangible things responsive to the subpoena have been produced for copying, inspection, testing, or sampling. Copies of the subpoena must be served pursuant to Rule 5 on all parties, and all material produced must be made available for inspection, copying, testing, or sampling by all parties. [As amended by order entered December 14, 2009, effective July 1, 2010.]

A party serving a subpoena requiring production of electronically stored information shall take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.

An order of the court requiring compliance with a subpoena issued under this rule must provide protection to a person that is neither a party nor a party’s officer from undue burden or expense resulting from compliance.

A command to permit inspection, copying, testing, or sampling may be joined with a command to appear at trial or hearing, or at a deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.

RULE 45.03: SERVICE.

A subpoena may be served by any person authorized to serve process, or the witness may acknowledge service in writing on the subpoena. Service of the subpoena shall be made by delivering or offering to deliver a copy thereof to the person to whom it is directed.

RULE 45.04: SUBPOENA FOR TAKING DEPOSITIONS — PLACE OF DEPOSITION.

(1) A subpoena for taking depositions may be issued by the clerk of the court in which the action is pending. If the subpoena commands the person to whom it is directed to produce 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 Rule 26.02, the subpoena will be subject to the provisions of Rules 30.02, 37.02 and 45.02. A subpoena for taking depositions may be served at any place within the state.

(2) A resident of the state may be required to give a deposition only in the county wherein the person resides or is employed or transacts his or her business in person, or at such other convenient place as is fixed by an order of the court. [As amended by order entered January 26, 1999, effective July 1, 1999.]

RULE 45.05: SUBPOENA FOR A HEARING OR TRIAL — PERSONAL ATTENDANCE.

(1) At the request of any party, subpoenas for attendance at a hearing or trial shall be issued by the clerk of the court in which the action is pending, and such a subpoena may be served at any place within the state.

(2) Upon the affidavit of a party or the party’s attorney that the testimony of a witness is important, and that the just and proper effect of the testimony cannot in a reasonable degree be obtained without an oral examination in court, the court may, in its discretion, order the personal attendance of the witness, although such witness may otherwise be exempt from personal attendance. [As amended by order entered January 23, 1986, effective August 1, 1986; and amended by order filed February 1, 1995, effective July 1, 1995.]

RULE 45.06: CONTEMPT.

Disobedience or a refusal to be sworn or to answer as a witness may be punished as a contempt of the court in which the action is pending.

RULE 45.07: PROTECTION OF PERSONS SUBJECT TO SUBPOENA.

Upon motion made within fourteen days after the subpoena is served or before the time specified in the subpoena for compliance therewith, whichever is earlier, the Court 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 costs of producing the books, papers, documents, electronically stored information, or tangible things. The timely filing of a motion to quash or modify obviates the need for compliance with the subpoena pending further order of the court. The failure to file a motion within the time period specified herein waives all objections to the subpoena except the right to seek the reasonable costs for producing books, papers, documents, electronically stored information, or tangible things.

[As enacted by order entered January 29, 1987, effective August 1, 1987; and by order entered January 6, 2005, effective July 1, 2005; and amended by order entered January 8, 2009, effective July 1, 2009; and by order filed December 21, 2010, effective July 1, 2011.]

Advisory Commission Comments [2011]. Rule 45.07 was amended to clarify the obligations of one who chooses to object to a subpoena issued under this rule. If a person served with a subpoena wishes to challenge it for any reason, a motion to quash or modify must be filed within fourteen days of service, unless the time for compliance is less than fourteen days from the date of service, in which event the motion to quash or modify must be filed before the date and time specified for compliance. The failure to timely file a motion to quash or modify waives all objections to the subpoena except the right to seek reasonable costs for producing books, papers, documents, electronically stored information, or tangible things.

RULE 45.08: DUTIES IN RESPONDING TO SUBPOENA.

(1) (A) 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.

(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.

(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.

(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or to quash, the person from whom discovery is sought must show that the information sought 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. The court may specify conditions for the discovery including, but not limited to the allocation of costs pursuant to the guidelines in Rule 26.06.

(2) (A) 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.

(B) If information is produced in response to a subpoena that 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 and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.

[As enacted by order entered January 29, 1987, effective August 1, 1987. Amended by order effective July 1, 2005, and by order entered January 8, 2009 and effective July 1, 2009.]

Advisory Commission Comments.

45.01: This Rule provides for the issuance of a subpoena, signed by the clerk or other authorized officer but otherwise in blank, in accord with custom of long standing in many counties.

45.02: Upon motion the court may quash or modify a subpoena duces tecum if it is unreasonable or oppressive and may require the party issuing the subpoena to advance reasonable costs of production of documents.

45.03: This Rule requires personal service upon a witness, unlike the prior practice, authorized by Tenn. Code Ann. § 24-206 [repealed], of leaving a copy of a subpoena at the usual place of residence of a witness who could not be found.

45.04: Tennessee has adopted the Uniform Foreign Deposition Act, Tenn. Code Ann. § 24-9-103 (repealed). This statute aids only the non-resident lawyer who wants to take a deposition inTennessee for use elsewhere.Tennessee lawyers must look to the foreign state’s statute for similar assistance. To determine whether a given state statute has adopted the Uniform Act, look under “Depositions” in the digest of the state’s laws in the last volume of Martindale-Hubbell Law Directory.

45.05: The first subparagraph of this Rule expressly authorizes service of a subpoena at any place within the state.

The second subparagraph recognizes the exemptions from personal attendance given by statute, Tenn. Code Ann. § 24-9-101, but authorizes the court, in its discretion, to order the personal attendance of such witnesses.

The reference to Rule 32.01(3) is a housekeeping change to conform to the 1979 rearrangement of discovery rules. [1986.]

45.07: The Commissioners were advised that the practice has developed of a lawyer serving a subpoena duces tecum and obtaining documents without informing opposing counsel. While believing that the language of the original rule required that a subpoena be served in connection with a deposition or trial, the Advisory Commission recommends the additional language to clarify the rule. Under the amendment, service of a subpoena that does not direct the person served to attend a deposition, hearing, or trial would be ineffective and unethical. SeeTenn. Sup. Ct. R. 8, RPC 3.4(c). [1987.]

Under the Hospital Records as Evidence provisions of Tenn. Code Ann. § 68-11-401 et seq., a custodian can comply with a subpoena duces tecum by sending sealed copies of records to the court clerk or court reporter. Tenn. Code Ann. § 68-11-402(b) contemplates a trial and notice to opposing counsel. If someone other than the patient’s lawyer subpoenas hospital records under this statutory procedure, the sealed envelope cannot be opened without the patient’s consent.Tenn.Code Ann. § 68-11-404. [1987.]

Advisory Commission Comments [1995]. The amendment to Rule 45.05 deleted the provision prohibiting a trial subpoena for deponent located more than 100 miles from the courthouse on trial day. With this amendment, a lawyer has the option of using the deposition or calling the deponent as a witness.

Advisory Commission Comments [1999]. 45.01, 45.04: The Tennessee Constitution, Article VI, Section 12, requires that “all writs and other process. . . be signed by the respective clerks.” Consequently, Rules 45.01 and 45.04 were amended to forbid others from issuing subpoenas, as they had no constitutional power to do so.

Advisory Commission Comments [2005]. Under prior Rules 45.02 and 45.07, a party seeking the production of books, papers, documents, or tangible things, or inspection of premises, was required to issue a subpoena for the testimony of the custodian. The amendment to Rule 45.02 allows a subpoena for production of documentary evidence without requiring the custodian’s attendance at a deposition. The rule also requires the person responding to provide an affidavit authenticating the documentary evidence produced pursuant to the subpoena and stating whether or not all responsive material has been produced. The rule requires that all parties have access to the material produced pursuant to subpoena. The procedures in this Rule compel the production of documents for review, but do not necessarily authenticate documents pursuant to Rule 902 of the Tennessee Rules of Evidence. This Rule also provides that a subpoena may command the inspection of a premises.

Advisory Commission Comments [2009].

Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information. Rule 45.02 is amended to recognize that electronically stored information can also be sought by subpoena. Rule 45.02 is amended to provide that the subpoena can designate a form or forms for production of electronic data.

Rule 45.02 is also amended to provide that a subpoena is available to permit testing and sampling, as well as inspection and copying. This change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information.

Inspection or testing of certain types of electronically stored information or of a person’s electronic information system may raise issues of confidentiality or privacy. The addition of sampling and testing to Rule 45.02 with regard to documents and electronically stored information is not meant to create a routine right of direct access to a person’s electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Rule 45.02, paragraphs 2 and 3 have been adopted from Rule 10(c) and (d) of the Uniform Rules Relating to Discovery of Electronically Stored Information, National Conference of Commissioners on Uniform State Laws (2007).

The amendment to Rule 45.04(1) restates settled law. A deposition subpoena, like a trial subpoena, may be served anywhere inTennessee.

New Rule 45.08 authorizes the person served with a subpoena to object to the requested form or forms. In addition, Rule 45.08 provides that if the subpoena does not specify the form or forms for electronically stored information, the person served with the subpoena must produce electronically stored information in a form or forms in which it is usually maintained or in a form or forms that are reasonably usable. Rule 45.08 also provides that the person producing electronically stored information should not have to produce the same information in more than one form unless so ordered by the court for good cause.

Rule 45.08(2), like amended Rule 26.02(5), adds a procedure for assertion of privilege or of protection as trial-preparation materials after production. The receiving party may submit the information to the court for resolution of the privilege claim, as under Rule 26.02(5).

With reference to Rule 45.08(1)(C), Guideline 6 of the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Conference of Chief Justices (2006), states: “In the absence of agreement among the parties, a judge should ordinarily require electronically-stored information to be produced in no more than one format and should select the form of production in which the information is ordinarily maintained or in a form that is reasonably usable.”

 

Advisory Commission Comments [2010]. The title of Rule 45.02 is expanded to conform to the language in the rule.

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