(1) Every subpoena shall
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection, copying, testing, or sampling of designated books, documents, electronically stored information, or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this rule; and
(E) comply with applicable format provisions of the 2010 or 2020 Vermont Rules for Electronic Filing. A command to produce evidence or to permit inspection, copying, testing, or sampling may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(2) A subpoena may issue from the court in any county.
(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney or a magistrate may also issue and sign a subpoena.
(4) A copy of every subpoena must be served on all parties to the case before or at the same time that it is served on the person to whom it is directed, with the exception of subpoenas for appearance in court for a trial or other hearing.
(1) A subpoena may be served by any person who is not a party and is at least 18 years of age. 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 with the subpoena the fees for one day’s attendance and the mileage allowed by law.
(2) A subpoena may be served at any place within the state.
(3) Proof of service when necessary shall be made by filing with the clerk of the court for which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. 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 and a reasonable attorney’s fee.
(2)
(A) A person commanded to produce and permit inspection, copying, testing, or sampling of designated electronically stored information, books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection, copying, testing, or sampling may, 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, serve upon the party or attorney designated in the subpoena written objection to producing any or all of the designated materials or inspection of the premises—or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to the requested production or to inspect, copy, test, or sample the materials or inspect the premises except pursuant to an order of the court for which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time for an order to compel the production, inspection, copying, testing, or sampling. Such an order to compel 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.
(3)
(A) On timely motion, the court for which a subpoena was issued shall quash or modify the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a resident of this state to travel to attend a deposition more than 50 miles one way unless the court otherwise orders; requires a nonresident of this state to travel to attend a deposition at a place more than 50 miles from the place of service unless another convenient place is fixed by order of court, or
(iii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or
(iv) subjects a person to undue burden.
(B) If a subpoena
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert’s opinion or information not describing specific events or occurrences in dispute and resulting from the expert’s study made not at the request of any party, or
(iii) requires a person who is not a party or an officer of a party to incur substantial expense to travel more than 50 miles one way to attend trial, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) Duties in Responding to Subpoena.
(1)
(A) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(B) If a subpoena does not specify the form or forms for producing electronically stored information, a person responding to a subpoena must produce the information in a form or forms in which the person ordinarily maintains it or in a form or forms that are reasonably usable.
(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.
(D) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the party identifies as not reasonably accessible because of undue burden or cost. On motion to compel discovery or for a protective order, the person from whom discovery is sought must show that the information sought is not reasonably accessible because of undue burden or cost. If that showing is made, the court may nonetheless order discovery from such sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(1). The court may specify conditions for the discovery.
(2)
(A) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.
(B) If information is produced in response to a subpoena that is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must promptly return, sequester, or destroy the specified information and any copies it has and may not use or disclose the information until the claim is resolved. A receiving party may promptly present the information to the court under seal for a determination of the claim. If the receiving party disclosed the information before being notified, it must take reasonable steps to retrieve it. The person who produced the information must preserve the information until the claim is resolved.
(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court for which the subpoena issued. Adequate excuse for failure to obey exists when a subpoena purports to require a nonparty to attend or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A). The provisions of 12 V.S.A. §§ 1623 and 1624 shall apply to failure by any person without adequate excuse to obey a subpoena served upon that person.
(f) Interstate Depositions and Discovery.
(1) Purpose. This rule governs depositions and discovery conducted in Vermont in connection with a civil action brought in another state.
(2) Definitions. In this rule:
(A) “Foreign jurisdiction” means a state other than Vermont.
(B) “Foreign subpoena” means a subpoena issued under authority of a court of record of a foreign jurisdiction.
(C) “Person” means an individual, corporation, business trust, estate, trust, partnership, limited liability company, association, joint venture, public corporation, government, or governmental subdivision, agency or instrumentality, or any other legal or commercial entity.
(D) “State” means a state of the United States, the District of Columbia, Puerto Rico, the United States Virgin Islands, a federally recognized Indian tribe, or any territory or insular possession subject to the jurisdiction of the United States.
(E) “Subpoena” means a document, however denominated, issued under authority of a court of record requiring a person to:
(i) attend and give testimony at a deposition;
(ii) produce 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; or
(iii) permit inspection of premises under the control of the person.
(3) Issuance of Subpoena for Interstate Depositions and Discovery.
(A) To request issuance of a subpoena under this rule, a party or attorney must submit a foreign subpoena or a court order from the foreign jurisdiction to the clerk of court in the county in which discovery is sought to be conducted, along with (i) a Vermont subpoena for signature by the clerk, (ii) a list of all counsel (or unrepresented parties) in the foreign action and their addresses and phone numbers, and (iii) the required filing fee. The subpoena cannot require either the appearance of a witness, or the production of documents, outside the State of Vermont. A request for the issuance of a subpoena under this rule may be filed by an attorney not admitted to practice in Vermont and does not constitute an appearance in the courts of this state. An unrepresented party may request issuance of a subpoena pursuant to this rule, but may only sign the foreign subpoena if such signing is authorized by the rules of the foreign jurisdiction.
(B) Challenges to the Subpoena. A motion for a protective order or to enforce, quash, or modify a subpoena issued under this paragraph (3) must comply with Rule 45(c) and be submitted to the court in the county in which discovery is to be conducted. Any attorney filing a motion or a response to such a motion, or appearing at a hearing on the motion, must be admitted to practice in Vermont.
(C) When a party submits a foreign subpoena to a clerk of court, the clerk shall provide it to the judge for review without delay. If the judge approves the request the clerk shall promptly sign the Vermont subpoena and return it to the requesting party for service.
(D) A subpoena under subparagraph (C) must:
(i) conform to the requirements of Rule 45 and other applicable provisions of these rules, but may otherwise incorporate the terms used in the foreign subpoena so long as they conform to these rules;
(ii) advise the person to whom the subpoena is directed that such a person has a right to move in the Vermont court under Rule 45(c) for an order to quash or modify the subpoena; and
(iii) contain or be accompanied by the names, addresses, and telephone numbers of all counsel of record in the proceeding to which the subpoena relates and of any party not represented by counsel.
(4) Service of Subpoena. A subpoena issued under paragraph (3) will be returned to the party requesting it, who is responsible for arranging for service and payment of the witness fee. It must be served in compliance with Rule 45(b), except that the officer or individual responsible for service shall not return a certificate of service or affidavit to the court that issued the subpoena. Instead the officer or individual responsible for service shall deliver a certificate of service or affidavit to the party who requested the subpoena.
(5) Deposition, Production, and Inspection. Rules 45(a), 45(b), 45(d) apply to subpoenas issued under paragraph (3).
Reporter’s Notes—2020 Amendment: Rule 45(a)(1)(E) is amended to clarify that its cross reference is to the 2010 or 2020 Vermont Rules for Electronic Filing, if either is applicable.
Reporter’s Notes—2018 Amendment: Rule 45 is amended at the request of the Civil Division Oversight Committee to conform the rule to current practice and to assure uniformity among the clerks’ offices. Rule 45(a)(3) is amended by the deletion of “notary public” from the list of those empowered to issue a subpoena. Notaries do not have express power to issue subpoenas. See 24 V.S.A. § 445. The term was carried over into the original rule from a statute that was repealed at the time of promulgation. See Reporter’s Notes to original Rule 45(a). Notary practice is not governed by rules and training. The amendment to Rule 45(a)(4) simplifies language and provides for prior or simultaneous service on the parties to avoid warning the witness before the parties can act. Rule 45(b)(1) is amended by addition of the requirement that witness fees be tendered with the subpoena to avoid issues of enforcement that might arise in the event of later nonpayment. For statutory witness fees, see 32 V.S.A. § 1551. Rule 45(f)(3)(A) is amended to clarify the application of the interstate deposition and discovery provisions of the rule to attorneys not admitted in Vermont and unrepresented litigants. To accommodate varying state practices, a request for a Vermont subpoena may be based on a foreign court order as well as a foreign subpoena. For uniformity of practice, the amendment requires that a blank subpoena, specific information about counsel or parties, and the filing fee accompany the request. The amendment also makes clear that the reach of a subpoena issued under it is limited to Vermont and specifies that a nonresident attorney may file a request without making an appearance. An unrepresented litigant may make a request under the rule on the basis of a foreign subpoena if the foreign state permits the litigant to sign such a subpoena. Otherwise, the litigant must proceed with a foreign court order. New Rule 45(f)(3)(B) incorporates the provisions of former Rule 45(f)(6), substituting “motion” for “application” for consistency with the general provisions of the rules and adding the requirement that the practice on such motions is limited to Vermont-admitted attorneys because they are adversary proceedings. Rule 45(f)(3)(C) (formerly (B)) is amended to require judicial approval before the clerk signs it. This provision and the amendment to paragraph Rule 45(f)(4) spell out that the clerk is to deliver the signed subpoena to the requesting party, who is responsible for service and payment of the witness fee. Former subparagraph (f)(3)(C) is redesignated (D). Former Rule 45(f)(6) is deleted because it is now incorporated in Rule 45(f)(3)(B).
Reporter’s Notes—2015 Amendment: Rule 45 is amended to adapt for Vermont the provisions for a notice of a subpoena to produce that were adopted in amendments to F.R.C.P. 45(a)(4), (b)(1), effective December 1, 2013. Other amendments to F.R.C.P. 45 adopted at the same time are not appropriate for Vermont. Rule 45(a)(4) is added to incorporate the notice provisions in the language of the amended federal rule. The notice provision formerly appeared in both V.R.C.P. 45(b)(1) and F.R.C.P. 45(b)(1). In both rules, it is now set forth in modified form in a new Rule 45(a)(4) and deleted from Rule 45(b)(1). As the federal Advisory Committee Notes to the 2013 amendment state, “The Committee has been informed that parties serving subpoenas frequently fail to give the required notice to the other parties. The amendment moves the notice requirement to a new provision in Rule 45(a) and requires that the notice include a copy of the subpoena. The amendments are intended to achieve the original purpose of enabling the other parties to object or to serve a subpoena for additional materials.” The caption of F.R.C.P. 45(a)(4) is not adopted for consistency with the format of V.R.C.P. 45.
Reporter’s Notes—2011 Amendment: See Reporter’s Notes to simultaneous amendment making the Vermont Rules for Electronic Filing permanent. Rule 45(f) is added to incorporate the provisions of the Uniform Interstate Depositions and Discovery Act (UIDDA), with modifications appropriate to Vermont practice. The Act has been adopted in 17 states and the District of Columbia since 2008 and is pending in four other states and the U.S. Virgin Islands. Idaho, Montana, and New Mexico have adopted the provisions of the Act by court rule. In applying and construing the present rule, consideration should be given to the purpose of the uniform act to promote uniformity of the law with respect to its subject matter among states that adopt it. For the Uniform Act and Comments, see http://www.law.upenn.edu/bll/archives/ulc/uidda/2007act_final.htm. The Commissioners on Uniform State Laws have summarized the purposes of the Act as follows The Act sets forth an efficient and inexpensive procedure for litigants to depose out of state individuals and for the production of discoverable materials that may be located out of state. Uniform procedures have become necessary as the amount of litigation involving individuals and documents located outside of the trial state has increased. Under the [Act], litigants can present a clerk of the court located in the state where discoverable materials are sought with a subpoena issued by a court in the trial state. Once the clerk receives the foreign subpoena, the clerk will issue a subpoena for service upon the person or entity on which the original subpoena is directed. The terms of the issued subpoena must incorporate the same terms as the original subpoena and contain the contact information for all counsel of record and any party not represented by counsel. The Act requires minimal judicial oversight and eliminates the need for obtaining a commission or local counsel in the discovery state, letters rogatory, or the filing of a miscellaneous action during the discovery phase of litigation. Discovery authorized by the subpoena is to comply with the rules of state in which it occurs. Furthermore, motions to quash, enforce, or modify a subpoena issued pursuant to the Act shall be brought in and governed by the rules of the discovery state. http://www.nccusl.org/Update/uniformact_summaries/unif ormacts-s-uidda.asp. Rule 45(f)(1) makes clear the purpose of the rule to provide a procedure enabling litigants in a proceeding in another state to use the procedures of the Vermont rules to obtain the forms of discovery covered by the rule. Rule 45(f)(2) contains the definitions set forth in UIDDA § 2. Note that the definition of “foreign subpoena” in subparagraph (B) limits the applicability of the rule to subpoenas “issued under the authority of a court of record,” thus excluding subpoenas issued by other tribunals such as administrative agencies or boards of arbitration. Cf. UIDDA § 3, Comment. Note also that the definition of “subpoena” includes a subpoena duces tecum and an order to permit inspection of premises but does not include an order to appear for a physical examination. See UIDDA § 2, Comment. Rule 45(f)(3) is based on UIDDA § 3, with variations to adapt the rule to Vermont practice. Rule 45(f)(4) is based on UIDDA § 4, with variations to adapt the rule to Vermont practice and to eliminate any requirement of a return to the issuing court. Rule 45(f)(5) adapts UIDDA § 5 to the provisions of the Vermont rule. Rule 45(f)(6) adapts UIDDA § 6 to the provisions of the Vermont rule.
Reporter’s Notes—2010 Amendment: Rules 4(b), (l)(3); 5(b), (e), (f); 6(a), (e); 10(d); 11(a), (b); 26(g); 40(a), (b); 45(a)(1)(G); 77(c), (d); 79(a)(1), (2); 79.1(g) of the Vermont Rules of Civil Procedure rules are amended or added to conform to the Vermont Rules for Electronic Filing as adopted by simultaneous emergency amendment. See Reporter’s Notes to those rules.
Reporter’s Notes—2009 Amendment: V.R.C.P. 45 is amended as part of a series of amendments conforming the Vermont Rules of Civil Procedure to 2006 amendments of the Federal Rules of Civil Procedure that made specific provision for discovery of electronically stored information. See Reporter’s Notes to simultaneous amendment of V.R.C.P. 26. The present amendments are virtually identical to the 2006 amendments of F.R.C.P. 45. The purpose of the amendments is to conform the procedure governing subpoenas involving electronically stored information to that provided for various forms of discovery by the amendments to V.R.C.P. 26, 33, and 34. The amendments of V.R.C.P. 45(a)(1) make clear, as does amended V.R.C.P. 34(a), that a subpoena may be sought for testing and sampling and that electronically stored information, which is defined in V.R.C.P. 34(a), may be sought by subpoena as well as through discovery. Similar to the provisions of amended V.R.C.P. 34(b), the subpoena can designate the form or forms for production of the information. Amended V.R.C.P. 45(c) and (d) track appropriate provisions of amended V.R.C.P. 34(b) concerning obligations of the parties and objections to production or nonproduction. V.R.C.P. 45(d)(2)(B), like amended V.R.C.P. 26(b)(5), provides a procedure for asserting privilege or trial-preparation materials protection after production. See Reporter’s Notes to simultaneous amendments of those rules.
Reporter’s Notes—1994 Amendment: Rule 45 as originally promulgated and previously amended is replaced by a new rule incorporating, with variations reflective of Vermont practice, a 1991 amendment of Federal Rule 45. The purposes of the amendment are to facilitate production of documentary or other material and inspection of premises, whether in the hands of a party or a nonparty, and to increase protections accorded to witnesses and other nonparties. The amendment also clarifies the organization of the rule. By a simultaneous amendment, provisions of existing V.R.C.P. 34 for production from nonparties have been deleted. Rule 45(a)(1)(A) and (B) contain provisions concerning form that are similar to those of former Rule 45(a). Subparagraph (C) makes clear that a subpoena may direct the recipient to appear to testify, to produce tangible evidence, or to permit inspection of premises. The final sentence of Rule 45(a)(1) provides that these various commands may be combined in a single subpoena or served separately. A subpoena under this rule will now be the exclusive means of obtaining production from nonparties, whether in connection with testimony at a trial or deposition as provided by former Rules 45(b), (d), or independent of a deposition as formerly permitted under Rule 34. To assure the effectiveness of the strengthened protective provisions of new Rules 45(c), (d), subparagraph (D) requires the text of those provisions to be set forth in the subpoena. Rule 45(a)(2), (3), depart from the federal rule to carry forward Vermont practice under former Rule 45(a). Rule 45(b)(1), (2), are substantially similar to the service provisions of former Rules 45(c), (e). The final sentence carries forward a provision formerly found in Rule 34(b) for notice to a party of a request for production directed to a nonparty. Ordinarily, as under former Rule 45(d)(1), unless a question of notice is raised, filing of the subpoena or notice with the court constitutes proof of service as provided in Rule 5(d). Rule 45(b)(3) specifies the manner of proof of service when a notice question has been raised. Rules 45(c) and (d) are intended to provide stronger protections for the rights of witnesses in light of the expanded scope of the rule. Both provisions follow the federal rule, except that all protective action is to be taken by the court for which the subpoena was issued rather than by the issuing court, and the limits upon travel distance are based on those found in former Rule 45(d)(2). Rule 45(c)(1) sets forth a general prohibition against abuse of a subpoena and gives the court to which the subpoena is returnable broad powers to issue protective orders and impose sanctions to assure that nonparties are protected against significant expense and other burdens. Paragraph (2) retains language from former Rules 45(b) and (d)(1), changing the response period from 10 to 14 days to avoid calculation problems under Rule 6 and to allow more time generally. The paragraph also provides express protection for nonparties. Rule 45(c)(3) replaces and enlarges upon former Rule 45(b). See also former Rule 34(b). The rule also tracks the provisions of Rule 26(c) but is addressed more directly to the concerns of the witness, who may read it where printed on the subpoena pursuant to Rule 45(a)(1)(D). See Advisory Committee’s Note to 1991 amendment of F.R. Civ. P. 45(c). Rule 45(d)(1) extends to production under subpoena the duties imposed by the last paragraph of Rule 34(b) upon a party responding to production. Paragraph (2) is intended to provide a party against whom a claim of privilege has been lodged sufficient information to resist an unjustified claim. See Advisory Committee’s Note to 1991 amendment of F.R. Civ. P. 45(d)(2). Rule 45(e) is similar in effect to former Rule 45(f) but makes clear that failure to respond is a contempt of the court to which the subpoena is returnable. “Adequate excuse” remains undefined in the rule. As the federal Advisory Committee’s Note to the 1991 amendment of Federal Rule 45(e) points out, “In at least some circumstances, a non- party might be guilty of contempt for refusing to obey a subpoena even though the subpoena manifestly overreaches the appropriate limits of the subpoena power. E.g., Walker v. City of Birmingham, 388 U.S. 307 (1967). [ Cf. State v. Carlson, 133 Vt. 562, 564, 349 A.2d 237 (1975).] But, because the command of the subpoena is not in fact one uttered by a judicial officer, contempt should be very sparingly applied when the non-party witness has been overborne by a party or attorney. The [second sentence of Rule 45(e)] is intended to assure that result where a non-party has been commanded, on the signature of an attorney, to travel greater distances than can be compelled pursuant to this rule.”
Reporter’s Notes—1982 Amendment: Rule 45(d)(1) is amended as part of the series of amendments to the discovery rules following the recent amendments to the Federal Rules of Civil Procedure. See Reporter’s Notes—1982 Amendments to Rule 26. The amendment defines “proof of service” as used in the first sentence of subdivision (d)(1). Unlike the federal amendment—which authorized proof of service through a certificate—the amendment adopts the language of Rule 5(d) that filing is a representation that service has been or will be made and that no further proof is needed unless an adverse party raises the question of notice.
Reporter’s Notes: This rule is basically similar to Federal Rule 45, with modifications intended to accommodate the rule to state practice. Rule 45(a) incorporates the provisions of 12 V.S.A. § 1621 (now superseded) for issuance of subpoenas by clerks, notaries, and magistrates, including justices of the peace, but does not mention masters, because their powers are covered in Rule 53. In addition the rule permits issuance by an attorney in line with the power of an attorney to issue mesne process. See Reporter’s Notes to Rule 4(a). The requirement of a seal, found in the federal rule, is eliminated in accordance with Vermont practice. See Reporter’s Notes to Rule 4(b). Rule 45(b), providing for a subpoena duces tecum, goes considerably beyond 12 V.S.A. § 1691 (now superseded) by providing for production by any witness, not merely by a party, and by permitting production of tangible things as well as documents. The rule contains protective provisions simpler than but similar in scope to those available by virtue of Rule 26(c) when production is sought under Rule 34. See Reporter’s Notes to Rules 26, 34; 2B Barron & Holtzoff, Federal Practice and Procedure § 1005 (Wright ed. 1961). Rule 45(c) provides for service by those officers who may serve process under Rule 4(c), as well as by any nonparty over the age of 18. The provision of 12 V.S.A. § 1622 (now superseded) for service by reading the subpoena aloud is omitted, but the provisions for service by delivery and tender of fees are generally the same as those of the statute. A provision of the federal rule excusing the United States from tender of fees has not been adopted in the Vermont rule. Rule 45(d)(1) is taken from the comparable federal rule as amended in 1970 in the course of amending the discovery rules. Like 12 V.S.A. § 1241 (now superseded), the rule provides for the issuance of a subpoena to take a deposition, with the difference that the subpoena may be issued by any of the officers authorized to do so under Rule 45(a). The 1970 amendments to the federal rule make the subpoena duces tecum provisions of the paragraph coextensive with the scope and protective provisions of Rule 34 for production other than in connection with a deposition. See Reporter’s Notes to Rule 34; federal Advisory Committee’s Note to Rule 45, 48 F.R.D. 487, 543. Rule 45(d)(2) adopts the basic 50-mile limit on travel for a deponent found in 12 V.S.A. § 1242 (now superseded), but adds provisions giving the court power to order otherwise in a proper case. The provision differs from the federal rule, which makes the county of residence or service the basic limitation. Rule 45(e), in providing for service of a subpoena anywhere within the state, is consistent with prior Vermont practice pertaining to service of process generally. See 12 V.S.A. § 658 (now superseded); Rule 4(h). The provision, taken from Maine Rule 45(e), differs from the federal rule, which limits service to the district or a place within 100 miles of the place of hearing. Rule 45(f) differs from the comparable federal rule, which provides that failure to obey a subpoena is a contempt of the issuing court. The Vermont rule incorporates 12 V.S.A. §§ 1623, 1624, providing a limited financial penalty, a civil action, and attachment to compel appearance. 12 V.S.A. § 1242, making the same remedies applicable to failure to appear upon subpoena for a deposition, is superseded because Rule 45(f) applies equally to subpoenas for trial or deposition.
Amended Dec. 28, 1981, eff. Mar. 1, 1982; Nov. 4, 1994, eff. Mar. 1, 1995; May 7, 2009, eff. July 6, 2009; Aug. 17, 2010, eff. Oct. 1, 2010; Aug. 30, 2011, eff. Oct. 31, 2011; Dec. 11, 2014, eff. Feb. 13, 2015; June 13, 2018, eff. Aug. 13, 2018; Dec. 10, 2019, eff. Mar. 2, 2020.
A subpoena under Rule 45 must name the issuing court, the case and its docket number, and command the person served to appear and testify, produce or permit inspection of documents or electronically stored information, or allow inspection of premises. It must also set out the text of the rule's protective provisions in subdivisions (c) and (d) so the recipient knows their rights, and it can issue from any county, signed in blank by the clerk for a requesting party to fill in, or issued directly by an attorney or a magistrate. Every subpoena copy generally must reach the other parties before or when it goes to the person commanded, and service can be made by any nonparty at least 18 years old, anywhere in the state, along with the witness's one-day attendance fee and mileage if attendance is required.
Rule 45(c) protects people who are subpoenaed. Whoever issues and serves a subpoena must avoid imposing undue burden or expense, on pain of court-ordered sanctions, including lost earnings and attorney's fees. A person commanded only to produce documents or allow inspection need not show up in person, and can object in writing within 14 days, which blocks production until the requesting party gets a court order compelling it. On timely motion, the court must quash or modify a subpoena that gives unreasonable time to comply, that makes a resident travel more than 50 miles to a deposition (or a nonresident travel more than 50 miles from where served) without the court's approval of another location, that would force disclosure of privileged or otherwise protected material, or that subjects someone to undue burden; the court may also step in to protect trade secrets, an unretained expert's opinions, or a nonparty forced to travel more than 50 miles to testify at trial, sometimes by ordering compensation instead of outright quashing the subpoena.
Rule 45(d) sets out how to respond: produce documents as they are kept in the ordinary course of business or organized to match the subpoena's categories, produce electronically stored information in a reasonably usable form, and raise privilege or trial-preparation-material claims expressly, with enough description to let the other side contest them; if privileged material slips through, the recipient must return, sequester, or destroy it once notified of the claim. Disobeying a subpoena without adequate excuse can be treated as contempt of the issuing court, though it is an adequate excuse if the subpoena tried to force travel beyond the rule's distance limits. Rule 45(f) closes with Vermont's version of the Uniform Interstate Depositions and Discovery Act, letting a party in an out-of-state lawsuit submit a foreign subpoena to a Vermont clerk, who forwards it for judicial review before issuing a matching Vermont subpoena for service here.