Maryland subpoenas: sixty days to serve, and misuse can cost you the evidence

Maryland Rule 2-510 opens by listing what a subpoena is for, and then says what happens when it is used for anything else. That structure is unusual, and it makes two ordinary-looking timing rules into grounds for sanctions.

Sixty days, and the deadline is on the face of the document

Rule 2-510(c) prescribes a uniform form and eight required contents. The last is a self-warning:

(8) a statement that the subpoena may be served within 60 days after its issuance and may not be served thereafter.

Rule 2-510(d) then makes it operative:

A person may not serve or attempt to serve a subpoena more than 60 days after its issuance. A violation of this provision shall constitute a violation of subsection (a)(3) of this Rule.

Two points. The window runs from issuance, not from the hearing date or the discovery cutoff — so a subpoena obtained early in a case and held for the right moment can quietly expire. And late service is not merely ineffective; it is a rule violation with the sanctions described below attached to it.

There is a second timing instruction in the same subsection, phrased as an effort rather than a deadline: "Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing."

Using a subpoena for anything else is sanctionable

Rule 2-510(a) sets out the permitted uses — compelling attendance, testimony and production at a court proceeding; compelling a non-party to do the same at a deposition; and, permissively, compelling a party over whom the court has jurisdiction to do so at a deposition. Then:

Except as otherwise permitted by law, a subpoena may not be used for any other purpose. If the court, on motion of a party or on its own initiative, after affording the alleged violator an opportunity for a hearing, finds that a person has used or attempted to use a subpoena or a copy or reproduction of a subpoena form for a purpose other than one allowed under this Rule, the court may impose an appropriate sanction, including an award of a reasonable attorney's fee and costs, the exclusion of evidence obtained as a result of the violation, and reimbursement of any person inconvenienced for time and expenses incurred.

Three sanctions are named, and the middle one is the one that decides cases: exclusion of the evidence obtained as a result of the violation. A subpoena used outside its permitted purposes may produce documents that cannot be used.

Note also that the court can act on its own initiative, and that the provision reaches "a copy or reproduction of a subpoena form."

Only the clerk fills in blanks — with two exceptions

Rule 2-510(b) routes issuance through the clerk in three ways: a completed subpoena on request; a blank form that the requester fills in and returns to the clerk to be signed and sealed before service; or, for a member in good standing of the Maryland Bar, a subpoena already signed and sealed which the attorney fills in. A registered MDEC user may download an electronic blank bearing the clerk's signature and seal.

Then the limit:

Except as provided in subsections (b)(2) and (b)(3) of this Rule, a person other than the clerk may not copy and fill in any blank form of subpoena for the purpose of serving the subpoena. A violation of this section shall constitute a violation of subsection (a)(3) of this Rule.

So photocopying a signed blank and reusing it is not an administrative shortcut — it is misuse, carrying the sanctions above. For a self-represented party in particular, each subpoena goes back to the clerk.

Ten days to object, and the objection blocks production

Rule 2-510(f) governs a deposition subpoena that also commands documents:

the person served or a person named or depicted in an item specified in the subpoena may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the court from which the subpoena was issued.

Three things follow.

Standing is wide. Not just the person served — also "a person named or depicted in an item specified in the subpoena." Someone whose photograph or records are inside the production can object even though the subpoena was directed elsewhere.

Ten days, in writing, with reasons.

And the objection stops production outright. No stay motion is needed; the serving party simply is not entitled to the materials without a court order.

The route back has its own window: "At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move for an order to compel the production."

For a subpoena to a court proceeding, Rule 2-510(e) gives the court four listed options — quashing or modifying, compliance at a different time or place, production "only upon the advancement by the party serving the subpoena of the reasonable costs of producing them," or delivery of the materials to the court subject to further order. A motion resting on privilege must be "supported by a description of the nature of each item that is sufficient to enable the demanding party to evaluate the claim."

Custodians can deliver to the clerk, and the certificate proves the records

Rule 2-510(i) lets a records custodian served with a trial subpoena comply without appearing:

A custodian of records served with a subpoena to produce records at trial may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The custodian may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records requested for the period designated in the subpoena and that the records are maintained in the regular course of business. The certification shall be prima facie evidence of the authenticity of the records.

The last sentence is why this matters to the party seeking the records as much as to the custodian: the certificate is prima facie evidence of authenticity, so a properly delivered set of records arrives authenticated.

Three consequences for drafting. Copies suffice unless the subpoena specifies originals. The envelope labeling is prescribed. And if you actually need the custodian in the room, Rule 2-510(i)(3) requires that "the subpoena shall state with specificity the reason for the presence of the custodian."

During trial the clerk "shall release the records only to the courtroom clerk assigned to the trial," and on final disposition returns the originals to the custodian.

Electronically stored information: form, and inaccessible sources

Rule 2-510(g) puts two familiar discovery principles into the subpoena rule. A person responding must produce documents "as they are kept in the usual course of business" or organized and labeled to correspond with the subpoena's categories, and must produce electronically stored information in the form specified or, absent a specification, "in the form in which the person ordinarily maintains it or in a form that is reasonably usable."

On inaccessible sources:

A person who declines to produce information on this ground shall identify the sources alleged to be not reasonably accessible and state the reasons why production from each identified source would cause undue burden or cost. The statement of reasons shall provide enough detail to enable the demanding party to evaluate the burdens and costs of complying with the subpoena and the likelihood of finding responsive information in the identified sources.

A bare assertion of burden will not do — the responding party has to name the sources and give the requesting party enough to assess both the burden and the likely yield.

Rule 2-510(h) states the corresponding duty on the other side: "A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to the subpoena."

Privileged material produced by mistake

Rule 2-510(k) sets out a clawback procedure that binds both sides. A party who receives material it "knows or reasonably should know was inadvertently sent shall promptly notify the sender." The producing person must notify each recipient of the claim and its basis. And then:

A party who wishes to determine the validity of a claim of privilege or protection that is not controlled by a court order or a disclosure agreement entered into pursuant to Rule 2-402(e)(5), shall promptly file a motion under seal requesting that the court determine the validity of the claim. A party in possession of information that is the subject of the motion shall appropriately preserve the information pending a ruling.A receiving party may not use or disclose the information until the claim is resolved and shall take reasonable steps to retrieve any information the receiving party disclosed before being notified.

The motion is filed under seal. Use and disclosure stop immediately, and anything already circulated has to be retrieved.

Body attachment

Rule 2-510(j) is short and carries a consequence few states state so directly:

A witness served with a subpoena under this Rule is liable to body attachment and fine for failure to obey the subpoena without sufficient excuse.

The writ "may be executed by the sheriff or peace officer of any county," and the witness is taken immediately before the court if it is sitting. If it is not, the witness goes before a District Court judicial officer "for a determination of appropriate conditions of release to ensure the witness' appearance at the next session of the court that issued the attachment."

Out-of-state cases

Rule 2-510.1 supplies the separate procedure for a subpoena sought in Maryland for a case pending elsewhere:

This Rule applies only to a subpoena issued under Code, Courts Article, Title 9, Subtitle 4 (Maryland Uniform Interstate Depositions and Discovery Act) requiring a person to attend and give testimony at a deposition and, if applicable, produce at the deposition and permit inspection and copying of designated books, documents, records, electronically stored information, or tangible things in the possession, custody, or control of the person.

Note the limit in the first words: the Rule reaches deposition subpoenas. It is the route to use when the action is in another state and the witness or the records are in Maryland.

A short checklist

If you are issuing one:

1. Diary 60 days from issuance. Service after that is a rule violation, not just a nullity.
2. Go back to the clerk for each subpoena unless you are a Maryland Bar member or an MDEC registered user.
3. Aim to serve a trial subpoena five days out.
4. Say whether you need originals — copies satisfy the rule by default.
5. State the specific reason if you need the custodian to appear in person.
6. Take reasonable steps to avoid undue burden; Rule 2-510(h) makes that your duty.

If you have been served:

1. Object in writing within ten days to a document demand attached to a deposition subpoena. That blocks production until a court orders otherwise.
2. You can object even if the subpoena was not directed at you, if you are named or depicted in the material.
3. Ask for advancement of production costs where the subpoena is for a court proceeding.
4. Check the issuance date. A subpoena served more than 60 days after issuance is served in violation of the Rule.

Where these rules live

• Md. Rule 2-510 — Subpoenas
• Md. Rule 2-510.1 — Foreign subpoenas
• Maryland discovery deadlines
• Maryland motion to compel discovery
• Maryland requests for admission
• Responding to a Maryland complaint

This page explains what the rules say. It isn't legal advice, and the Maryland Uniform Interstate Depositions and Discovery Act itself is not carried on this site.