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Rule 17A – Subpoena for Production of Documentary Evidence or Tangible Objects by a Nonparty

May 13, 2021 | Criminal Procedure, Maine

(a) Subpoena to Produce Documentary Evidence or Tangible Objects.

A party may serve a subpoena on a nonparty commanding the nonparty to produce documentary evidence or tangible objects at the time and place specified therein. The time specified shall be not less than 14 days, unless a shorter time is ordered by the court. The place specified shall not impose an undue burden or expense upon the nonparty. Documentary evidence includes, but is not limited to, electronically stored information, books, papers, photographs, and videos. A subpoena may be issued by the clerk under the seal of the court or by a member of the Maine Bar. A member of the Maine Bar has the option in each case of either signing and issuing the subpoena as an officer of the court or instead having the clerk of any Unified Criminal Docket do so. In the latter circumstance, upon the request of the bar member, the clerk shall provide a subpoena, signed and sealed but otherwise in blank. The bar member shall fill in the blanks before it is served. An unrepresented defendant may be provided a subpoena completed by the clerk. A member of the Maine Bar may be provided a subpoena in blank. The text of subdivisions (d), (e) and (f) of this Rule shall be contained in, or appended to, the subpoena.

(b) Service. A subpoena may be served by the sheriff, by the sheriff’s deputy, by a constable, or by any other person who is not a party and who is not less than 18 years of age. Service of a subpoena shall be made by delivering a copy thereof to the person named. A defendant determined indigent by the court pursuant to Rule 44(b) is entitled to service within the state without payment of the cost. Such cost shall be paid by the Maine Commission on Indigent Legal Services. A request to the sheriff for service shall be accompanied by a certificate of counsel that the defendant has been determined indigent.
(c) Notice to Adverse Party. Unless otherwise provided by statute notice of the service of the subpoena and a copy thereof shall be provided to opposing counsel or, when applicable, an unrepresented defendant contemporaneously with service.
(d) Motion to Quash or Modify Subpoena. A party or the subpoenaed nonparty or a person whose rights are potentially affected by the subpoena may move to quash or modify the subpoena.

The court may quash or modify the subpoena if compliance would be unreasonable, oppressive, or in violation of constitutional rights.

(e) Sanction for Noncompliance. If the subpoenaed nonparty fails to obey the subpoena, the court shall order an appropriate sanction, which may include a warrant or order of arrest.
(f) Privileged or Protected Documentary Evidence. If a party or the party’s attorney knows that a subpoena seeks the production of documentary evidence that may be protected from disclosure by a privilege, confidentiality protection, or privacy protection under federal law, Maine law (for example, requests for Department of Health and Human Services records pursuant to 22 M.R.S. ยง4008(3)(B), so-called “Clifford Orders”), or the Maine Rules of Evidence, the party or its attorney shall file a motion in limine, pursuant to Rule 12, before serving the subpoena. The motion shall contain a statement setting forth (1) the particular documents sought by the subpoena with a reasonable degree of specificity of the information contained therein; (2) the efforts made by the moving party in procuring the information contained in the requested documents by other means; (3) that the moving party cannot properly prepare for trial without such production of the documents; and (4) that the requested information is likely to be admissible at trial. The motion in limine shall be accompanied by a copy of the yet unserved subpoena.

Upon receipt of the motion, the court shall make a preliminary determination that the moving party has sufficiently set forth the relevancy, admissibility, and specificity of the requested documents. If the motion fails to meet the minimum threshold of information required, the court may summarily deny the motion. If the motion satisfies the minimal threshold of information required, the court shall direct the clerk to set the matter for hearing and issue a notice of hearing. The notice shall state the date and time of the hearing and direct the subpoenaed individual or entity from whom the documentary evidence is sought to submit the documentary evidence subject to the subpoena for in camera review by the court or to adequately explain in writing any reasons for a failure to submit the documentary evidence for in camera review. Following the clerk’s issuance of a notice, the party seeking production shall serve the subpoena, the motion, and the notice on the subpoenaed individual or entity from whom the documentary evidence is sought in accordance with subdivision (b).

Upon receipt of the subpoena, the motion and the notice, the subpoenaed individual or entity to whom the subpoena is directed shall either submit the documentary evidence subject to the subpoena for in camera review by the court or provide in writing reasons for the failure to submit the documentary evidence for in camera review before the date of the hearing. After the hearing, the court may issue any order necessary to protect any party’s or nonparty’s privileges, confidentiality protections, or privacy protections under federal law, Maine law, or the Maine Rules of Evidence. A party or nonparty that may assert a privilege, confidentiality protection, or privacy protection may waive the right to a hearing and any applicable privileges or protections by notifying the court in writing that the party or nonparty is waiving any applicable privileges or protections.

(g) Grand Jury Proceedings. This Rule does not apply to a grand jury proceeding except as to the form, issuance, and service of a grand jury subpoena; sanction for noncompliance; and the rights of a subpoenaed nonparty.

Me. R. Uni. Crim. P. 17A

Last amended effective November 2, 2016.