Massachusetts subpoenas: a notary public can issue one

Almost everywhere, a subpoena comes from a court clerk or an attorney of record. Massachusetts adds two issuers that no other state on this site does, and the practical effect is that a subpoena can be obtained without going near a courthouse.

Three people can issue one

Rule 45(a):

Every subpoena shall be issued by the clerk of court, by a notary public, or by a justice of the peace, shall state the name of the court and the title of the action, and shall command each person to whom it is directed to do the following at a specified time and place: to attend and give testimony; to produce designated documents, electronically stored information, or tangible things in that person's possession, custody, or control; or to permit inspection of premises. The clerk, notary public, or justice of the peace shall issue a subpoena signed but otherwise in blank, to a party requesting it, who shall fill it in before service.

A clerk, a notary public, or a justice of the peace. All three issue the subpoena signed and in blank, and the requesting party fills it in.

That matters for anyone acting without counsel, and for anyone who needs a subpoena outside court hours. It also means the issuer is not vouching for the contents — the blank is signed first and completed afterwards, so the scope of the command is entirely the requesting party's responsibility.

Trial and hearing subpoenas come from the same three under Rule 45(e), and "may be served at any place within the Commonwealth."

Fifty airline miles, from whichever point is nearest

Rule 45(d)(2) sets the geographic limits with two unusual refinements:

Unless the court orders otherwise, other than for a hearing or trial, a resident of this Commonwealth shall not be required to attend an examination or produce documents, electronically stored information, or tangible things at a place more than 50 airline miles distant from either his residence, place of employment, or place of business, whichever is nearest to the place to which he is subpoenaed. Other than for a hearing or trial, a nonresident of the Commonwealth when served with a subpoena within the Commonwealth may be required to attend or produce documents, electronically stored information, or tangible things only in that county wherein he is served, or within 50 airline miles of the place of service, or at such other convenient place as is fixed by an order of court.

Airline miles — straight-line distance, not road distance, which in practice extends the reach.

And "whichever is nearest." The fifty miles are measured from whichever of the three points is closest to the place named in the subpoena, not from the witness's home. A witness who works near the deposition location cannot rely on living far away.

Both limits are expressly "other than for a hearing or trial," so a trial subpoena is not constrained by them.

Parties get thirty days, and a new defendant gets forty-five

Rule 45(d)(1) carries two figures that apply only where the recipient is a party:

A subpoena upon a party which commands the production of documents, electronically stored information, or things must give the party at least 30 days for compliance after service thereof. Such subpoena shall not require compliance of a defendant within 45 days after service of the summons and complaint on that defendant. The court may allow a shorter or longer time.

Thirty days as a floor for any party, and a forty-five day shield for a newly served defendant measured from service of the summons and complaint, not from the subpoena.

Non-parties are on a different footing: their objection window under the same subsection is "within 10 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 10 days after service."

The notice comes first, and everything gets shared

Rule 45(d)(1) opens with a sequencing rule and then a distribution rule:

No subpoena for the taking of a deposition shall be issued prior to the service of a notice to take the deposition. If a subpoena commands only the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a copy of the subpoena shall be served on each party. The party serving a subpoena requiring production or inspection before trial shall also serve on each party a copy of any objection to the commanded production or inspection and a notice of any production made or, alternatively, provide a copy of the production to each party.

Three obligations in sequence. No deposition subpoena before the deposition notice. A copy of a records-only subpoena to every party before the custodian is served. And then the part people forget: the issuing party must circulate any objection it receives and notice of any production made — or simply give everyone a copy of what was produced.

So a Massachusetts records subpoena is not a private channel. What comes back is reported, at minimum, and often shared outright.

Ten days to object, and the objection stops production

For a non-party, Rule 45(d)(1) supplies the objection and its effect:

If objection is made, the party serving the subpoena shall not be entitled to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court from which the subpoena was issued. The party serving the subpoena may, if objection is made, move at any time upon notice to the commanded person for an order compelling production or inspection. Such an order to compel production or inspection shall protect a person who is neither a party nor a party's officer from undue burden or expense resulting from compliance.

Note the protection standard in the last sentence — "undue burden or expense," which is broader than the "significant expense" formula used in many states.

Rule 45(b) adds the motion route, with a conjunctive standard and a cost alternative. The court, on a motion made promptly "and in any event at or before the time specified in the subpoena for compliance," 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 cost of producing the documents, electronically stored information, or tangible things.

"Unreasonable and oppressive" — both, not either. That is a higher bar than the disjunctive version most states use, and it makes option (2) the more realistic request in a burdensome case.

No privilege log unless somebody asks for one

Rule 45(f)(2)(A) is short and, for anyone used to federal practice, startling:

A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material shall make the claim expressly and provide information that will enable the parties to assess the claim. A privilege log need not be prepared, except by agreement or order of the court.

The duty to describe the claim well enough to be assessed remains. What is removed is the form in which that has to be done. A subpoenaed non-party in Massachusetts does not owe a document-by-document log unless the parties agree on one or the court orders it.

If you are the party seeking the material and you want a log, ask for one — by agreement or by motion — rather than assuming it will arrive.

Copies will do, with a right to check them

Rule 45(f)(1)(A):

Other than for a deposition, hearing, or trial, unless the production of original documents is requested, the producing party may produce copies of the documents, including by electronic means, provided that, if requested, the producing party affords all parties a fair opportunity to verify the copies by comparison with the originals.

Copies are the default, electronic copies included. The safeguard is a verification right: on request, all parties get a fair opportunity to compare against the originals.

Two consequences. If you need originals, say so in the subpoena. And if you receive copies and something looks wrong, the comparison right is available without a motion.

A non-party can claim the benefit of an existing protective order

Rule 45(f)(3) gives a subpoenaed person two routes:

Any person subject to a subpoena under this rule may move the court: (A) for a protective order under rule 26(c) or (B) to be deemed entitled to any protection set forth in any discovery or procedural order previously entered in the case.

Option (B) is the useful one and it is rare. Where the parties have already negotiated a confidentiality or protective order, a non-party dragged into the case can ask to be covered by it rather than litigating its own terms from scratch.

Anyone answering a Massachusetts subpoena in a case with an existing protective order should check it first; that motion is usually shorter and cheaper than a fresh one.

Service, and what happens if it is ignored

Rule 45(c) allows service "by any person who is not a party and is not less than 18 years of age," and lists three methods: "delivering a copy thereof to such person, or by exhibiting it and reading it to him, or by leaving a copy at his place of abode." Where attendance is required, service includes "tendering to him the fees for one day's attendance and the mileage allowed by law."

Subpoenas issued on behalf of the United States, the Commonwealth or a political subdivision, or an officer or agency of either, need no tender.

Rule 45(g): "Failure by any person without adequate excuse to obey a subpoena served upon him may be deemed a contempt of the court in which the action is pending."

A short checklist

If you are issuing one:

1. A notary public or justice of the peace can issue it if the clerk's office is inconvenient.
2. Serve the deposition notice before the subpoena issues.
3. Copy a records-only subpoena to every party before serving the custodian.
4. Circulate any objection and notice of any production you receive.
5. Give a party 30 days, and a newly served defendant 45 from the summons and complaint.
6. Ask for originals in the subpoena if copies will not do.

If you have been served:

1. Object within 10 days, or by the compliance date if that is sooner; production stops until a court orders otherwise.
2. Measure 50 airline miles from whichever of home, work or business is nearest to the place named.
3. You do not owe a privilege log unless it is agreed or ordered.
4. Ask to be covered by any existing protective order rather than negotiating new terms.

Where these rules live

• Mass. R. Civ. P. 45 — Subpoena
• Massachusetts depositions
• Massachusetts discovery deadlines
• Massachusetts motion to compel discovery
• Responding to a Massachusetts complaint

This page explains what the rules say. It isn't legal advice, and the witness fee statutes referred to in Rule 45(c) are not carried on this site.