Rhode Island subpoenas: the electronic-discovery test is benefit against burden

Most subpoena rules handle electronically stored information in a sentence or two borrowed from the discovery rules. Rhode Island writes the whole framework into Rule 45, including a balancing test and a set of mandatory limits, which makes the subpoena the place to argue about electronic material rather than a side issue.

Inaccessible sources: likely benefit against likely burden

The burden of establishing inaccessibility sits with the objector:

On motion to compel discovery or for a protective order, the person objecting to discovery bears the burden of showing that the information is from a source that is not reasonably accessible because of undue burden or expense.

If that is shown, the court is not finished. Rule 45(d) supplies the test for ordering production anyway:

The court may order discovery of electronically stored information that is from a source that is not reasonably accessible because of undue burden or expense if the party requesting discovery shows that the likely benefit of the proposed discovery outweighs the likely burden or expense, taking into account the amount in controversy, the resources of the parties, the importance of the issues, and the importance of the requested discovery in resolving the issues.

Not "good cause," which is the phrase most states use — likely benefit weighed against likely burden, with four named factors. That is a materially different argument, and one that requires the requesting party to say what it expects to find and why it matters.

If the order is made, the cost question is expressly open:

If the court orders such discovery, the court may set conditions for discovery of the information, including allocation of the expense of discovery.

The court must limit even accessible discovery

Rule 45(d) then goes further than the inaccessibility analysis, and the verb is mandatory:

The court shall limit the frequency or extent of discovery of electronically stored information, even from a source that is reasonably accessible, if the court determines that: (I) The information may be obtained from some other source that is more convenient, less burdensome, or less expensive

So the availability of an easier source is not merely a factor. Where the court makes that determination, limiting the discovery is what it does.

For a non-party served with a broad electronic subpoena, that is often the strongest point available: not that the material is inaccessible, but that a party to the case already has it or can get it more easily.

Format: yours unless the subpoena says otherwise, and you can object

Rule 45 allows the issuing party to specify: "A subpoena may specify the format in which electronically stored information is to be produced."

But the specification is not the last word:

If a person responding to a subpoena for production of electronically stored information objects to a specified format for producing the information, or if a format is not specified in the subpoena, production by the person shall be in a format which is ordinarily maintained or one that is reasonably usable.

Two triggers lead to the same place — an objection to the specified format, or no format specified. Either way the responder produces as ordinarily maintained or in a reasonably usable form.

So a format demand in a Rhode Island subpoena is effectively a request. A responder who cannot meet it objects and falls back to its own format.

A notary can issue one

Rule 45(a)(1)(A) lists the issuers, and the second is unusual:

(A) Be issued by the clerk of court or a notary public or other officer authorized by statute

A notary public may issue a Rhode Island subpoena. That is a practical route outside court hours and for parties without counsel.

The subpoena issues in the name of the right court for the task. Rule 45(a)(2):

(A) For attendance at a trial or hearing, in the name of the court where the hearing or trial is to be held; (B) For attendance at a deposition, in the name of the court in which the action is pending, stating the method for recording the testimony; and (C) For production or inspection, if separate from a subpoena commanding a person's attendance, in the name of the court in which the action is pending.

Note the extra content requirement tucked into (B): a deposition subpoena must state the method for recording the testimony.

Every subpoena must also state the issuing court, "the title of the action, the name of the court in which it is pending, and its civil action number." A command to produce "may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately."

Service, tender, and proof

Rule 45(b)(1) allows service by an officer under the writs and process chapter "or by any other person who is not a party and is not less than eighteen (18) years of age," and requires the fee where attendance is commanded:

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 (1) day's attendance and the mileage allowed by law.

The State and its officers and agencies are exempt: "When the subpoena is issued on behalf of the state or any officer or agency thereof, fees and mileage need not be tendered."

Before a records subpoena goes out, the parties are told: "Prior notice of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b)."

Proof of service, where needed, is "made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and the names of the persons served, certified by the person who made the service."

Fourteen days to object

Rule 45(c)(2)(B) gives the recipient the alternative to a motion, on the usual double deadline — "within fourteen (14) days after service of the subpoena or before the time specified for compliance if such time is less than fourteen (14) days after service."

The issuing party's route back is a motion, available "at any time" on notice to the person commanded, and any order carries a protection:

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, copying, testing, or sampling 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."

Three mandatory quashing grounds — and no distance limit

Rule 45(c)(3)(A) is shorter than most states' equivalents:

On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it: (i) Fails to allow reasonable time for compliance; (ii) Requires disclosure of privileged or other protected matter and no exception or waiver applies; or (iii) Subjects a person to undue burden.

Read what is missing. There is no mileage or county limit among the mandatory grounds — no hundred miles, no fifty, no county of residence. A Rhode Island witness's protection against being made to travel runs through "undue burden" rather than through a fixed radius.

In a state of Rhode Island's size that is a sensible omission, but it changes the argument. A recipient objecting to the location has to show burden rather than point to a number.

Privileged material: sequester first

Rule 45's clawback provision is more directive than most, and the first step is immediate:

After being notified of a claim of privilege or of protection, a party shall immediately sequester the specified information, including any copies, and: (i) Return or destroy the information and all copies and not use or disclose the information until the claim is resolved; or (ii) Present the information to the court under seal for a determination of the claim.

Sequester immediately, then choose one of two paths — return or destroy, or present it to the court under seal. There is no option to hold the material and argue about whether the claim is good.

And anything already circulated has to be chased:

If a party that received notice of a claim of privilege or of protection disclosed the information subject to the notice before being notified, the party shall take reasonable steps to retrieve the information.

A short checklist

If you are issuing one:

1. Say what electronic format you want — but expect the responder's own format if it objects.
2. State the recording method on a deposition subpoena.
3. Give the parties prior notice before a records subpoena goes to the custodian.
4. Be ready to show likely benefit against likely burden for anything from an inaccessible source.
5. Check whether an easier source exists. The court must limit discovery if one does.
6. Tender the fee where attendance is commanded.

If you have been served:

1. Object within fourteen days, or by the compliance date if that is sooner.
2. Point to a more convenient source if one exists; that triggers a mandatory limit.
3. Ask for cost allocation if inaccessible material is ordered produced anyway.
4. On a location objection, argue undue burden — there is no mileage limit to rely on here.

Where these rules live

• R.I. Super. R. Civ. P. 45 — Subpoena
• Rhode Island depositions
• Rhode Island motion to compel discovery
• Responding to a Rhode Island complaint
• Rhode Island TROs and injunctions

This page explains what the rules say. It isn't legal advice, and the writs and process statutes referred to in Rule 45(b)(1) are not carried on this site.