Rule 45.Subpoena.

Rule 45 is the tool for compelling someone — often a person or organization outside the lawsuit — to testify, produce documents or electronically stored information, or open up premises for inspection. It spells out how a subpoena must look, how it gets served, what protections the person receiving it has, and what happens if that person ignores it.

On form and issuance, every subpoena must come from the clerk of court, a notary public, or another officer authorized by statute. It has to name the issuing court, the title of the action, the court where the case is pending, and the civil action number, and it must command the person to attend and testify, or to produce and let someone inspect, copy, test, or sample documents, electronically stored information, or tangible things, or to permit inspection of premises, at a specified time and place. It must also set out the text of subdivisions (c) and (d) of the rule, and it may specify the format for producing electronically stored information. A subpoena for trial or hearing issues in the name of the court where that proceeding will be held; one for a deposition issues in the name of the court where the action is pending and must state how the testimony will be recorded; and one for production or inspection alone, apart from a command to attend, likewise issues in the name of the court where the action is pending.

On service, a duly authorized officer can serve a subpoena under Rhode Island’s process statutes, or any other person who isn’t a party and is at least eighteen (18) years old can do it. Service means delivering a copy to the person and, if that person’s attendance is commanded, tendering one (1) day’s attendance fee and mileage — unless the subpoena is issued on behalf of the state or a state officer or agency, in which case no fee is required. Anyone commanding production of documents or things, or inspection of premises, before trial must also give prior notice to every party in the manner Rule 5(b) requires. A subpoena can be served anywhere in Rhode Island, and proof of service, when needed, is filed with the clerk of the issuing court.

Rule 45 puts real limits on how a subpoena can be used against the person who receives it. The party or attorney who issues it must take reasonable steps to avoid undue burden or expense, and the court can sanction a breach, including lost earnings and attorney’s fees. A person subpoenaed only to produce documents or things, or allow inspection, doesn’t have to show up in person unless also commanded to appear for deposition, hearing, or trial. That person has fourteen (14) days after service — or less if the subpoena calls for compliance sooner — to serve written objection to the inspection, copying, testing, or sampling; once an objection is served, the party who sent the subpoena can inspect only by getting a court order compelling production, and that order must protect anyone who is neither a party nor an officer of a party from significant expense the inspection would cause. The rule also addresses electronically stored information directly: production should be in the format ordinarily maintained or a reasonably usable one, a person never has to produce the same information twice in different formats, and a person can resist producing information from sources that aren’t reasonably accessible because of undue burden or expense, subject to the court weighing the benefit against the burden. On timely motion, the court that issued the subpoena must quash or modify it if it doesn’t allow reasonable time to comply, requires disclosing privileged or otherwise protected material with no exception or waiver applying, or subjects the person to undue burden. Extra protection applies to trade secrets, confidential commercial information, and certain unretained experts’ opinions, and the rule includes a clawback procedure for privileged electronically stored information produced by mistake.

Once a subpoena calls for documents or electronically stored information, the responding person must produce them as they’re kept in the ordinary course of business, or organize and label them to match the categories requested, and any privilege claim must be made expressly and described in enough detail for the other side to evaluate it. Ignoring a subpoena without adequate excuse can be treated as contempt of the court in which the action is pending.