Alabama subpoenas: a records subpoena is not issued until fifteen days after you announce it

In Alabama a subpoena for records is not something you serve. It is something you apply for, by telling everyone what you intend to do and waiting to see whether anyone objects. Miss the sequence and the clerk will not issue the subpoena at all.

The clearance procedure

Rule 45(a)(3) sets the first step:

The party seeking issuance of a subpoena for production, inspection, copying, testing, or sampling shall serve a notice to every other party of the intent to serve such subpoena upon the expiration of fifteen (15) days from the service of the notice, and the proposed subpoena shall be attached to the notice. The court may allow a shorter or longer time.

So the notice announces a future act, and the proposed subpoena is attached so everyone can see exactly what is being asked for.

There is also a gate on when you may start:

Such notice may be served without leave of court upon the expiration of forty-five (45) days after service of the summons and complaint or other mode of service under Rule 4 – Rule 4.4 upon any defendant, except that leave is not required within the forty-five- (45-) day period if a defendant has previously sought discovery.

Forty-five days from service on any defendant — unless a defendant opened discovery first, in which case the wait disappears.

Ten days to object, and the subpoena simply does not issue

Rule 45(a)(3)(B) gives the objection real force:

Any person or party may serve an objection to the issuance of a subpoena for production, inspection, copying, testing, or sampling within ten (10) days of the service of said notice and in such event the subpoena shall not issue. The party serving the notice may move for an order under Rule 37 (a) with respect to such objection. If no objection is timely served, the clerk shall cause the subpoena to be issued upon the expiration of fifteen (15) days from the service of the notice or upon the expiration of such other time as may have been allowed by the court.

Three points that change how you plan a records subpoena in Alabama.

"Any person or party" may object — not only the parties. The intended recipient can object before ever being served.

The subpoena "shall not issue." This is not a suspension pending a ruling, as in Nevada. The clerk does not issue it, full stop, and the burden moves to the party who wanted it.

The remedy is a Rule 37(a) motion — the same machinery as a motion to compel discovery, with its conferral and fee-shifting consequences.

Trial, hearing and deposition subpoenas are ordinary

The clearance procedure applies to production subpoenas. Rule 45(a)(2) leaves the rest conventional: "A subpoena commanding attendance at a trial or hearing and a subpoena commanding attendance at a deposition shall issue from the court in which the action is pending."

And Rule 45(a)(3) draws the line in the same sentence that creates the procedure: the clerk "shall issue a subpoena to a party requesting it, except that a subpoena for production, inspection, copying, testing, or sampling separate from a subpoena commanding attendance is subject to the notice procedure." A production command joined to a deposition or trial subpoena travels with it; a standalone records subpoena goes through the notice route.

That distinction is worth using deliberately. If you are deposing a records custodian anyway, the combined subpoena avoids the fifteen-day wait.

What the subpoena has to say

Rule 45(a)(3)(C) requires a production subpoena to be "directed to a person at a stated address" and to describe what is sought. The general requirements in Rule 45(a)(1) — the issuing court, the title of the action, the command itself — apply to every subpoena.

One hundred miles, measured two ways

Rule 45(c)(3)(A) makes the travel limit a mandatory ground for quashing:

(i) fails to allow 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 a place more than one hundred (100) miles from the place where that person resides, is employed, or regularly transacts business in person, or requires a nonresident of this state who is not a party or an officer of a party to travel to a place within this state more than one hundred (100) miles from the place of service

A hundred miles either way, but from different points. For an Alabama resident the radius is drawn around where they live, work or do business. For a non-resident served inside Alabama, it is drawn around the place of service — so where a process server finds someone determines how far they can be made to travel.

Officers of a party are outside the protection, as are the parties themselves.

The issuer's duty to limit burden

Rule 45(c)(1) requires a party or attorney responsible for issuing and serving a subpoena to take reasonable steps to avoid imposing undue burden or expense on the person subject to it, and directs the court to enforce that duty with an appropriate sanction.

Read alongside the notice procedure above, the design becomes clear: Alabama would rather the parties argue about a proposed subpoena before a non-party is ever troubled by it.

A short checklist

Issuing one:

1. Check the 45 days from service on any defendant, or whether a defendant already sought discovery.
2. Serve a notice of intent on every party, with the proposed subpoena attached.
3. Wait 15 days, then the clerk issues — if nobody objected.
4. Consider combining the records command with a deposition or trial subpoena to avoid the wait.
5. Move under Rule 37(a) if an objection comes in; the subpoena will not issue otherwise.
6. Ask the court for a shorter time if the case will not wait — the rule expressly allows it.

Receiving the notice:

1. Diary 10 days from service of the notice, not from any subpoena.
2. Object in writing — and remember that a non-party who is shown the notice may object too.
3. Read the attached proposed subpoena; it is the document you are objecting to.
4. Expect a Rule 37(a) motion in response, with the conferral and fee consequences that carries.

Where these rules live

• Ala. R. Civ. P. 26 — General Provisions Governing Discovery
• Ala. R. Civ. P. 30 — Depositions upon oral examination
• Ala. R. Civ. P. 34 — Production of documents and things
• Ala. R. Civ. P. 37 — Failure to make discovery; sanctions
• Ala. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• Alabama motion to compel discovery

This page explains what the rules say. It isn't legal advice, and an individual court's scheduling order may shorten or lengthen the times this page describes.