North Carolina subpoenas: a records custodian can mail the documents instead of appearing

North Carolina's Rule 45 is one of the most detailed in the country, and three of its provisions have no counterpart in the federal rule: a records custodian can comply by mail, a subpoena for attendance can be served by telephone, and the subpoena itself has to tell the recipient what their rights are.

The custodian's alternative to appearing

Rule 45(c)(2) is the provision that saves hospitals and public agencies from sending a person to court:

Where the subpoena commands any custodian of public records or any custodian of hospital medical records, as defined in G.S. 8-44.1, to appear for the sole purpose of producing certain records in the custodian's custody, the custodian subpoenaed may, in lieu of personal appearance, tender to the court in which the action is pending by registered or certified mail or by personal delivery, on or before the time specified in the subpoena, certified copies of the records requested together with a copy of the subpoena and an affidavit

Three conditions matter. It applies to public records and hospital medical records custodians only; the subpoena must be for the sole purpose of producing records; and the copies must be certified and arrive on or before the time specified.

The payoff is evidentiary:

Any original or certified copy of records or an affidavit delivered according to the provisions of this subdivision, unless otherwise objectionable, shall be admissible in any action or proceeding without further certification or authentication.

Records that arrive this way come in without a foundation witness. That is worth planning around when you draft the subpoena — ask for the records alone, and you may get admissible copies without anyone taking the stand.

Medical records carry a further restriction:

Copies of hospital medical records tendered under this subdivision shall not be open to inspection or copied by any person, except to the parties to the case or proceedings and their attorneys in depositions, until ordered published by the judge at the time of the hearing or trial.

And nothing in the subdivision "shall be construed to waive the physician-patient privilege or to require any privileged communication under law to be disclosed."

Who may issue, and service by telephone

Rule 45(a)(4) gives an unusually wide list of issuers: the clerk issues a signed but blank subpoena to a party, who completes it before service, and "[a]ny judge of the superior court, judge of the district court, magistrate, or attorney, as officer of the court, may also issue and sign a subpoena."

Service is unusually wide too. Under Rule 45(b)(1) a subpoena may be served "by the sheriff, by the sheriff's deputy, by a coroner, or by any person who is not a party and is not less than 18 years of age," and

Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to that person or by registered or certified mail, return receipt requested.

Then the provision nobody expects:

Service of a subpoena for the attendance of a witness only may also be made by telephone communication with the person named therein only by a sheriff, the sheriff's designee who is not less than 18 years of age and is not a party, or a coroner.

Attendance only, and only by a sheriff, a qualifying designee, or a coroner. A telephone call from counsel's office is not service.

A copy must also go to every party: "A copy of the subpoena served under subdivision (b)(1) of this subsection shall also be served upon each party in the manner prescribed by Rule 5 (b)."

The subpoena has to explain itself

Rule 45(a)(1) requires the document to carry, on its face, the title of the action, the court, the civil action number, the name of the party at whose instance the witness is summoned, the protections available under subsection (c), and the requirements for responses under subsection (d).

A subpoena that omits the protections and response requirements is defective in form, and a recipient who was never told about the ten-day objection route has an obvious argument about it.

Ten days, two routes

North Carolina gives a subpoenaed person two ways to resist, on the same clock.

Written objection — Rule 45(c)(3). Within 10 days after service, or before the compliance time if that is sooner, serve written objection "setting forth the specific grounds for the objection." The objection "shall comply with the requirements of Rule 11," so it is signed and certifiable like a pleading. The listed grounds are that the subpoena fails to allow reasonable time for compliance; requires disclosure of privileged or protected matter; subjects a person to undue burden or expense; is otherwise unreasonable or oppressive; or is procedurally defective.

Motion to quash or modify — Rule 45(c)(5). On the same ten-day clock:

A person commanded to appear at a trial, hearing, deposition, or to produce and permit the inspection and copying of records, books, papers, documents, electronically stored information, or other tangible things, within 10 days after service of the subpoena or before the time specified for compliance if the time is less than 10 days after service, may file a motion to quash or modify the subpoena. The court shall quash or modify the subpoena if the subpoenaed person demonstrates the existence of any of the reasons set forth in subdivision (3) of this subsection. The motion shall be filed in the court in the county in which the trial, hearing, deposition, or production of materials is to occur.

Two points. The grounds are the same list as the written objection — so the choice between the two is tactical, not substantive. And the motion is filed where the production or appearance is to occur, not where the case is pending.

Cost protection, both before and after

Rule 45(c)(1) puts a duty on the issuer and gives the court a remedy:

A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. The court shall enforce this subdivision and impose upon the party or attorney in violation of this requirement an appropriate sanction that may include compensating the person unduly burdened for lost earnings and for reasonable attorney's fees.

Note "shall enforce" and the express mention of lost earnings — a non-party's time, not merely their copying costs.

Rule 45(c)(6) then protects them again at the enforcement stage:

When a court enters an order compelling a deposition or the production of records, books, papers, documents, electronically stored information, or other tangible things, the order shall protect any person who is not a party or an agent of a party from significant expense resulting from complying with the subpoena.

So even a non-party who loses is entitled to protection from significant expense in the order itself.

Producing documents and electronic information

Rule 45(d)(1) sets the form: records are produced "as they are kept in the usual course of business" or organized and labeled to correspond with the categories in the request.

For electronically stored information, Rule 45(d)(2)–(4) tracks the modern federal scheme. If the subpoena does not specify a form, the responder "must produce it in a form or forms in which it ordinarily is maintained or in a reasonably useable form or forms." The same information need not be produced in more than one form. And inaccessible information — sources not reasonably accessible because of undue burden or cost — need not be produced without a court order.

A short checklist

Issuing one:

1. Put the protections and response requirements on the face of the subpoena; Rule 45(a)(1) requires both.
2. Serve a copy on every party under Rule 5(b).
3. Use telephone service only through a sheriff or coroner, and only for attendance.
4. Ask a records custodian for records alone — you may get certified, self-authenticating copies by mail.
5. Take reasonable steps to limit burden. The court "shall" sanction a failure, including lost earnings and fees.
6. Specify the form for electronically stored information if the form matters to you.

Receiving one:

1. Diary 10 days from service, or the compliance date if sooner.
2. Choose your route — written objection to the issuer, or a motion to quash where the production is to occur. The grounds are identical.
3. Sign the objection carefully. Rule 11 applies to it.
4. Ask for expense protection if you are a non-party, both in the objection and in any order.

Where these rules live

• N.C. R. Civ. P. 26 — General Provisions Governing Discovery
• N.C. R. Civ. P. 30 — Depositions Upon Oral Examination
• N.C. R. Civ. P. 45 — Subpoena
• Subpoenaing records in another state
• North Carolina motion to compel discovery
• North Carolina discovery deadlines

This page explains what the rules say. It isn't legal advice, and G.S. 8-44.1, which defines a hospital medical records custodian, is a statute this site doesn't carry.