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Rule 2-510.1 – Foreign Subpoenas in Conjunction with a Deposition

May 13, 2021 | Civil Prodcedure, Maryland

(a) Applicability. This Rule applies only to a subpoena issued under Code, Courts Article, Title 9, Subtitle 4 (Maryland Uniform Interstate Depositions and Discovery Act) requiring a person to attend and give testimony at a deposition and, if applicable, produce at the deposition 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.

Cross reference: For the issuance of a subpoena based on a foreign subpoena that does not require a person to attend a deposition, see Rule 2-422.1.

(b) Definitions.

(1)Statutory Definitions. The definitions stated in Code, Courts Article, § 9-401 apply in this Rule, to the extent relevant.
(2)Inspection. In this Rule, “Inspection includes inspecting, measuring, surveying, photographing, testing, and sampling to the extent permitted by Rule 2-402(a).
(3)Foreign Party. In this Rule, “foreign party means the party on whose behalf a foreign subpoena is issued.
(4)Foreign Attorney. In this Rule, “foreign attorney means an attorney licensed to practice law in a foreign jurisdiction, but not in the state of Maryland.
(c) Request for Issuance. A party to an action pending in a foreign jurisdiction may request issuance of a subpoena by a court of this State based on a foreign subpoena issued in that action by submitting a request to the clerk of the circuit court for the county in which discovery is sought to be conducted. The request shall be accompanied by the foreign subpoena and a written undertaking in a form approved by the State Court Administrator, signed by the foreign party and the party’s foreign attorney, if any, by which the party and the party’s foreign attorney submit to the jurisdiction of the circuit court for the purpose of adjudicating discovery disputes, motions to quash, enforcement of the subpoena, and discovery sanctions. A foreign party and the party’s foreign attorney, if any, who files a request or undertaking pursuant to this section does not, by so doing, submit to the jurisdiction of a court of this State for any other purpose.

Committee note: Section (c) of this Rule does not affect the jurisdiction of a court over a party or attorney who is otherwise subject to the court’s jurisdiction.

(d) Issuance. The clerk promptly shall issue a subpoena for service upon the person to whom the foreign subpoena is directed. The subpoena shall:

(1) incorporate the terms used in the foreign subpoena;
(2) comply with the requirements of section (e) of this Rule; and
(3) contain or be accompanied by the names, addresses, and telephone numbers of all attorneys of record in the proceeding to which the subpoena relates and of any party not represented by an attorney.
(e) Form. Except as otherwise permitted by the court for good cause, every subpoena shall be on a uniform form approved by the State Court Administrator. The form shall contain:

(1) the caption of the action, including the civil action number for the Maryland court issuing the subpoena,
(2) the name and address of the person to whom it is directed,
(3) the name of the person at whose request it is issued,
(4) the date, time, and place where attendance is required,
(5) a description of any documents, electronically stored information, or tangible things to be produced and if testing or sampling is to occur, a description of the proposed testing or sampling procedure,
(6) when required by Rule 2-412(d), a notice to designate the person to testify,
(7) the date of issuance, and
(8) a statement that the subpoena may be served within 60 days after its issuance and may not be served thereafter. A subpoena may specify the form in which electronically stored information is to be produced.

Committee note: A subpoena may be used to compel attendance at a deposition that will be held more than 60 days after the date of issuance, provided that the subpoena is served within the 60-day period. The failure to serve a subpoena within the 60-day period does not preclude the issuance of a new subpoena.

(f) Service. A subpoena shall be served by delivering a copy to the person named or to an agent authorized by appointment or by law to receive service for the person named or as permitted by Rule 2-121(a)(3). A subpoena may be served by a sheriff of any county or by any person who is not a party and who is not less than 18 years of age. A person may not serve or attempt to serve a subpoena more than 60 days after its issuance.

Cross reference: See Code, Courts Article, § 6-410, concerning service upon certain persons other than the custodian of public records named in the subpoena if the custodian is not known and cannot be ascertained after a reasonable effort. As to additional requirements for certain subpoenas, see Code, Health–General Article, §§ 4-302 and 4-306(b)(6), 45 C.F.R. 164.512 regarding medical records; Code, Health–General Article, § 4-307 regarding mental health records; and Code, Financial Institutions Article, § 1-304.

(g) Objection to Subpoena for Deposition. A person served with a subpoena to attend a deposition may seek a protective order pursuant to Rule 2-403. If the subpoena also commands the production of documents, electronically stored information, or tangible things at the deposition, the person served or a person named or depicted in an item specified in the subpoena may seek a protective order pursuant to Rule 2-403 or may file, within ten days after service of the subpoena, an objection to production of any or all of the designated materials. The objection shall be in writing and shall state the reasons for the objection. If an objection is filed, the party serving the subpoena is not entitled to production of the materials except pursuant to an order of the Maryland court from which the subpoena was issued. At any time before or within 15 days after completion of the deposition and upon notice to the deponent, the party serving the subpoena may move for an order to compel the production.

A claim that information is privileged or subject to protection shall be supported by a description of each item that is sufficient to enable the demanding party to evaluate the claim.

(h) Duties Relating to the Production of Documents, Electronically Stored Evidence, and Other Property.

(1)Generally. A person responding to a subpoena to produce documents, electronically stored information, or other property at a deposition shall:

(A) produce the documents or information as they are kept in the usual course of business or shall organize and label the documents or information to correspond with the categories in the subpoena; and
(B) produce electronically stored information in the form specified in the subpoena or, if a form is not specified, in the form in which the person ordinarily maintains it or in a form that is reasonably usable.
(2)Electronically Stored Information. A person responding to a subpoena to produce electronically stored information at a court proceeding or deposition need not produce the same electronically stored information in more than one form and may decline to produce the information on the ground that the sources are not reasonably accessible because of undue burden or cost. A person who declines to produce information on this ground shall identify the sources alleged to be not reasonably accessible and state the reasons why production from each identified source would cause undue burden or cost. The statement of reasons shall provide enough detail to enable the demanding party to evaluate the burdens and costs of complying with the subpoena and the likelihood of finding responsive information in the identified sources. Any motion relating to electronically stored information withheld on the ground that it is not reasonably accessible shall be decided in the manner set forth in Rule 2-402(b).
(i) Protection of Persons Subject to Subpoenas. A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or cost on a person subject to the subpoena.

Cross reference: For the availability of sanctions for violations of this section, see Rules 1-201(a) and 1-341.

(j) Permissive and Non-permissive Use.

(1) A subpoena may be used to compel a witness to attend, give testimony, and produce and permit inspection, copying, testing, or sampling of designated documents, electronically stored information, or tangible things at a deposition to the extent permitted by Rule 2-402(a).
(2) A subpoena issued under this Rule may not be used for any other purpose. If the court, on motion of a party or on its own initiative, after affording the alleged violator an opportunity for a hearing, finds that a person has used or attempted to use a subpoena or a copy or reproduction of a subpoena form for a purpose other than one allowed under this Rule, the court may impose an appropriate sanction, including an award of a reasonable attorney’s fee and costs, and reimbursement of any person inconvenienced for time and expenses incurred.
(k) Attachment. A witness served with a subpoena under this Rule is liable to body attachment and fine for failure to obey the subpoena without sufficient excuse. The writ of attachment may be executed by the sheriff or peace officer of any county and shall be returned to the court issuing it. The witness attached shall be taken immediately before the court if then in session. If the court is not in session, the witness shall be taken before a judicial officer of the District Court for a determination of appropriate conditions of release to ensure the witness’ appearance at the next session of the court that issued the attachment.
(l) Information Produced that is Subject to a Claim of Privilege or Protection.

(1) A party who receives a document, electronically stored information, or other property that the party knows or reasonably should know was inadvertently sent shall promptly notify the sender.
(2) Within a reasonable time after information is produced in response to a subpoena that is subject to a claim of privilege or of protection, the person who produced the information shall notify each party who received the information of the claim and the basis for it. A party who wishes to determine the validity of a claim of privilege or protection that is not controlled by a court order or a disclosure agreement entered into pursuant to Rule 2-402(e)(5), shall promptly file a motion under seal requesting that the court determine the validity of the claim. A party in possession of information that is the subject of the motion shall appropriately preserve the information pending a ruling. A receiving party may not use or disclose the information until the claim is resolved and shall take reasonable steps to retrieve any information the receiving party disclosed before being notified.

Cross reference: See Rule 19-304.4(b) of the Maryland Attorneys’ Rules of Professional Conduct.

Md. R. Civ. P. Cir. Ct. 2-510.1

This Rule is new.

Adopted Dec. 13, 2016, eff. Apr. 1, 2017. Amended April 9, 2018, eff. July 1, 2018.

HISTORICAL NOTES

2018 Orders

The April 9, 2018 order, added a references to the cross reference following section (f).