(1) Every subpoena shall
(A) state the name of the Court and the county 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 in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
(D) set forth the text of subdivisions (c), (d), and (e) 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 shall issue from the county in which the action is pending. If the action is pending in another court, a subpoena for attendance at a deposition shall issue from the county in which the deposition is to be taken or, if separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the county in which the production or inspection is to be made.
(3) The Prothonotary shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. A Delaware attorney, as an officer of the Court, may also issue and sign a subpoena.
(1) A subpoena may be served by the Sheriff or 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. Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b).
(2) Proof of service when necessary shall be made by filing with the Prothonotary of the county from which the subpoena issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
(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 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 and a reasonable attorney’s fee.
(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 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 the Court. 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 shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance, (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iii) 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, 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 be otherwise 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 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) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of court.
Amended, effective Nov. 18, 1970; Oct. 15, 1980; Feb. 1, 1990, Jan. 1, 1991; June 1, 1991; July 1, 1995.
Rule 45(a) spells out what every subpoena must state — the issuing court and county, the case title and civil action number, a command to appear, testify, or produce and permit inspection of specified material, and the text of the subpoena's protection, response, and contempt provisions. It issues from the county where the action is pending, or, for a deposition or production tied to an action pending elsewhere, from the county where the deposition, production, or inspection will happen. The Prothonotary issues a subpoena signed but otherwise blank to the requesting party to fill in, and a Delaware attorney, as an officer of the Court, can issue and sign one directly.
Rule 45(b) lets the sheriff or any non-party at least 18 years old serve a subpoena by delivering a copy to the person named, and requires prior notice of any commanded pre-trial document production or premises inspection to be served on every party under Rule 5(b). Rule 45(c) puts an affirmative duty on the party or attorney issuing the subpoena to avoid imposing undue burden or expense, backed by sanctions that can include lost earnings and attorney's fees. A person commanded only to produce documents doesn't have to appear in person unless also commanded to a deposition, hearing, or trial, and has 14 days after service (or less, if the compliance date is sooner) to serve a written objection; once an objection is served, the requesting party needs a court order to inspect or copy anything covered by it.
The Court must quash or modify a subpoena, on timely motion, if it doesn't allow reasonable time to comply, requires disclosure of privileged or otherwise protected material with no exception or waiver, or subjects a person to undue burden. Trade secrets, confidential commercial information, and an unretained expert's opinions get extra protection: the Court can quash or modify the subpoena, or, where the requesting party shows a substantial need that can't otherwise be met without undue hardship and assures reasonable compensation, order production only on specified conditions.
Rule 45(d) requires documents to be produced as they're kept in the ordinary course of business, or organized and labeled to match the categories in the demand, and requires any privilege or trial-preparation claim to be made expressly with enough description to let the other side contest it. Rule 45(e) treats a failure, without adequate excuse, to obey a subpoena as contempt of court.