More Categories

Rule 45 – Subpoena

May 14, 2021 | Civil Procedure, Vermont

(a) Form; Issuance.

(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.
(b)Service.

(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 possesion 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 consel 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).

V.R.C.P. 45

Amended Dec. 28, 1981, eff. March 1, 1982; Nov. 4, 1994, eff. March 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; amended June 13, 2018, effective August 13, 2018; amended December 10, 2019, effective March 2, 2020.

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 earned 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 um-epresented 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 Vennont 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).

Fornier Rule 45(f)(6) is deleted because it is now incorporated in Rule 45(f)(3)(B).