Maine subpoenas: fourteen days to the parties, and seven for them to object

Maine runs a discovery subpoena through two clocks before the recipient's own objection right is reached. Both belong to the other parties, and both run before anything has to be produced.

Fourteen days out, seven days to object

Rule 45(b)(1) sets the notice period:

Prior notice of any commanded production of documents and things or inspection of premises or the appearance of a witness in discovery or pretrial proceedings shall be served on each party in the manner prescribed by Rule 5(b) at least 14 days prior to the response date set forth in the subpoena.

Then the window that sits inside it:

A party shall have 7 days to object to a discovery or pretrial subpoena and to arrange for the determination of the objection by the court.

Two things to take from the second sentence. The obligation is not merely to object but to arrange for the determination of the objection by the court — filing a letter of objection and waiting is not what the rule asks for. And seven days is short, so a party that wants to stop a subpoena has to move quickly once the notice arrives.

The notice period is measured backwards from the response date set forth in the subpoena, not from issuance or service. So the drafting question for the issuing party is what response date leaves fourteen clear days after the notice goes out.

Trial and hearing subpoenas are noticed too, but without the fourteen days: "Subpoenas commanding the appearance of a witness or the production of documents or things at trial or hearing shall be served on each party in the manner prescribed by Rule 5(b)."

Objections at trial go to the judge in the room

Rule 45 routes disputes differently depending on the stage. For discovery subpoenas, "Motions or objections concerning subpoenas issued in discovery or pretrial proceedings shall be made under Rule 26(g)."

For trial:

Motions or objections concerning subpoenas issued to command appearance or production of documents or tangible things at trial or hearing shall promptly be directed first to the judge or justice presiding at such trial or hearing.

"First to the judge or justice presiding" — not to a motion session, and not to the court generally. A witness or party with a problem about a trial subpoena raises it with the trial judge.

A subpoena can issue from anywhere in the state

Rule 45(a)(2) removes the geographic constraint on issuance that most states impose:

A subpoena for the Superior Court may issue from the court in any county, and for the District Court from the court in any district.

Any county for the Superior Court, any district for the District Court. Combined with the attorney route — "An attorney admitted to the Maine Bar may also issue and sign a subpoena as officer of the court" — obtaining a Maine subpoena is not tied to where the case sits.

The attorney can serve it personally

Rule 45(b)(1) is broader than the usual formula:

A subpoena may be served by any person who is not a party and is not less than 18 years of age, including the attorney of a party.

Most states' rules exclude a party but say nothing about counsel; Maine names the attorney expressly as a permitted server. For a small firm or a solo practitioner that removes a step and a cost.

Service itself is delivery plus, where attendance is commanded, tender:

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person and, if the person's attendance is commanded, by tendering to that person the fees for one day's attendance and the mileage allowed by law.

Fourteen days for the recipient, and the objection blocks production

Once served, the recipient has its own window. Under Rule 45(c)(2)(B) a person commanded to produce may object "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."

The effect is the familiar bar:

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 any justice or judge of the court for which the subpoena was issued.

Note the forum — "any justice or judge of the court for which the subpoena was issued," which follows from the statewide issuance rule above.

The issuing party's response is a motion, available "at any time" on notice to the person commanded, and:

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.

A person commanded only to produce or permit inspection "need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing, or trial."

Exceeding the limits excuses the failure

Rule 45(f) makes the geographic protection self-executing:

An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A).

That clause is one of the mandatory quashing grounds, covering a resident non-party required to travel to attend a deposition outside the permitted area. A non-party facing such a subpoena does not have to move to quash to be safe — the failure to obey is excused by the rule.

Contempt itself is available in either of two places:

Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court in which the action is pending or in the county in which the deposition is taken.

And the punishment is not left at large: "Punishment for contempt under this subdivision (f) shall be in accordance with Rule 66 and 16 M.R.S.A. § 102."

Sanctions reach the cost of seeking them

Rule 45(c)(1) states the burden-avoidance duty, and Maine's sanction provision is wider than the usual formula:

The court for which the subpoena was issued 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, a reasonable attorney fee, and other reasonable expenses incurred in seeking the sanction.

Three heads are named, and the third is unusual: the reasonable expenses incurred in seeking the sanction. A non-party that has to go to court to enforce the duty is not left out of pocket for having done so.

"Shall enforce" and "impose" — both mandatory, so the question before the court is the amount rather than whether to act.

What a subpoena must contain

Rule 45(a)(1) requires every subpoena to state the issuing court, "the title of the action, the name of the court in which it is pending, and its civil action number," and to command attendance or production.

Note that the title provision names two courts where they differ — the court from which the subpoena issued and the court in which the action is pending — which follows from the any-county issuance rule.

A command to produce "may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately."

A short checklist

If you are issuing one:

1. Count back 14 days from the response date when serving notice on the parties.
2. Expect a 7-day objection window, and that an objecting party will take it to the court.
3. You can serve it yourself if you are the attorney; the rule says so expressly.
4. Issue from any county or district that is convenient — the rule does not tie you to the trial court.
5. Tender the fee where attendance is commanded.
6. Raise trial subpoena problems with the presiding judge first.

If you have been served:

1. Object within 14 days, or by the compliance date if that is sooner. Production stops until a court orders otherwise.
2. Check the distance. A non-party required to attend outside the permitted limits has an adequate excuse without moving to quash.
3. Ask for your lost earnings and fees — and for the cost of bringing the application itself.
4. At trial, go to the judge presiding, promptly.

Where these rules live

• Me. R. Civ. P. 45 — Subpoena
• Maine depositions
• Maine motion to compel discovery
• Responding to a Maine complaint
• Maine TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the contempt statute referred to in Rule 45(f) is not carried on this site.