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Rule 45 – Subpoena.

May 14, 2021 | Civil Procedure, Rhode Island

(a)Form; Issuance.

(1) Every subpoena shall:

(A) Be issued by the clerk of court or a notary public or other officer authorized by statute;
(B) State the name of the court from which it is issued;
(C) State the title of the action, the name of the court in which it is pending and its civil action number;
(D) 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 , 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
(E) Set forth the text of subdivisions (c) and (d) of this rule,

A command to produce evidence or to permit inspection 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 format in which electronically stored information is to be produced.

(2) A subpoena must issue as follows:

(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
(b)Service.

(1) A subpoena may be served by a duly authorized officer in accordance with Title 9, Chapter 5 (Writs, Summons, and Process) of the Rhode Island General Laws or by any other person who is not a party and is not less than eighteen (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 the fees for one (1) day’s attendance and the mileage allowed by law. When the subpoena is issued on behalf of the state or an officer or agency thereof, fees and mileage need not be tendered. 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). A subpoena may be served at any place within the state.
(2) Proof of service when necessary shall be 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.
(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 on behalf of 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 documents, electronically stored information, 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 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, serve upon the self-represented litigant or attorney designated in the subpoena written objection to inspection copying, testing, or sampling of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect, copy test, or sample the materials or inspect the premises except pursuant to an order of the court by 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. 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.
(C) 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. A person need not produce the same electronically stored information in more than one (1) format.
(D)

(i) A person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or expense. 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.
(ii) 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.
(iii) If the court orders such discovery, the court may set conditions for discovery of the information, including allocation of the expense of discovery.
(iv) 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;
(II) The discovery sought is unreasonably cumulative or duplicative;
(III) The party seeking discovery has had ample opportunity by discovery in the proceeding to obtain the information sought; or
(IV) The likely burden or expense of the proposed discovery outweighs the likely benefit, 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.
(3)

(A) 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 or expense.
(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,

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.

(C) If electronically stored information produced in response to a subpoena 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 the claim. 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 and not otherwise use or disclose the information until the claim is resolved.

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.

(d)Duties in Responding to Subpoena.

(1) A person responding to a subpoena to produce documents and/or electronically stored information 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.
(2) 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.
(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 in which the action is pending.

R.I. Super. Ct. R. Civ. P. 45

Amended November 6, 2017, effective November 6, 2017.