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Rule 45 – Subpoena

May 15, 2021 | Delaware, Family Law

(a) For Attendance of Witness; For Production of Documentary Evidence; Form; Issuance.

(1) Every subpoena shall be issued by the Clerk under the seal of the Court, and shall:

(A) state the name of the Court;
(B) state the title of the action and its civil action number;
(C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents 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 (d) and (e) of this Rule.

The Clerk shall issue a subpoena, or a subpoena for the production of documentary evidence, signed and sealed but otherwise in blank, to a party requesting it, who shall fill it in before service. A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at a deposition or may be issued separately.

(2) Subpoenas for the attendance at a hearing, trial or deposition shall be issued by the Clerk of Court of the county where the hearing, trial or deposition is to be held. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the Clerk for the county in which the production or inspection is to be made.
(3) If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.
(b) Omitted.
(c) Service. A subpoena may be served by the sheriff, by the sheriff’s deputy or by any other person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. Prior notice of any inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(c). Proof of service shall be made by filing with the Clerk of the county 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.
(d) Subpoena for taking depositions. Where discovery is permitted by these Rules, a party issuing a notice of deposition provided for in Rules 30(b) and 31(a) may serve a subpoena as provided for in Rule 45(a). The subpoena may command the person to whom it is directed to produce and permit inspection and copying of designated books, papers, documents or tangible things which constitute or contain matters within the scope of the examination permitted by Rule 26(g), but in that event the subpoena will be subject to the provisions of Rule 26(h) and subdivision (a) of this Rule. The person to whom the subpoena is directed may, within 14 days after the service thereof or on or before the time specified in the subpoena for compliance if such time is less than 14 days after service, serve upon the attorney designated in the subpoena written objections to inspection or copying of any or all of the designated materials. If objection is made, the party serving the subpoena shall not be entitled to inspect or copy the materials except pursuant to an order of the Court from which the subpoena was issued. The party serving the subpoena may, if objection has been made, move upon notice to the deponent for an order at any time on or before the taking of the deposition. The attendance of witnesses and the production by them of designated documents or tangible things taken at depositions elsewhere than the State of Delaware may be compelled by whatever means are available under the laws of the place where the examination is held.
(e) Subpoena for hearing or trial. At the request of any party, subpoenas for the attendance at a hearing or trial shall be issued by the Clerk.
(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt.
(g) Medical records. The following procedure shall govern production of medical records under subpoena for trial purposes:

(1) In responding to a subpoena calling for the production of medical records belonging to a hospital or other institution having custody of medical records or records relating to the physical condition of a party, it will be considered that the institution has complied if it delivers within 10 days of receipt of the subpoena, or on the trial date set forth in the subpoena, whichever is sooner, either personally or by registered mail, return receipt requested, or by certified mail, to the Clerk issuing the subpoena to the original record, including all documents and x-rays relating to the medical record and meets all the other requirements hereinafter stated. Unless otherwise ordered by the Court, instead of the original records, legible photocopies thereof may be furnished.
(2) The documents and x-rays so delivered shall be kept in the custody of the Clerk of Court, in the envelope or envelopes in which they are supplied by the institution. This envelope shall be clearly marked to identify the contents, the name of the patient, the title and number of the court case, and shall be of a distinctive type and form approved by the Court. The Clerk shall be charged with the custody and preservation of the envelope and its contents and shall not release them from custody except upon the Court’s order or as otherwise provided herein. However, the Clerk shall permit counsel for any party in the case for which the medical records were furnished or any party thereto who is unrepresented by counsel to inspect such records while they remain within the custody of the Clerk. Copies may only be made upon Court order.
(3) The admissibility of the contents of the medical record shall be in no way affected or altered by these procedures and shall remain and be subject to the same rulings by the Court and objections by trial counsel as would exist if the original records were personally produced by the subpoenaed party, except that the certification referred to in subparagraph (2) above shall constitute sufficient evidence of genuineness of the record.
(4) The contents of the record as aforesaid shall be preserved and maintained as a cohesive unit and shall not be separated or released except as provided herein or upon the order of the Court. Forty days after any final notice, stipulation or order dismissing or otherwise terminating any case in which medical records have been subpoenaed, if no appeal is in process, or in the event of appeal proceedings, after any final order terminating the same, any original records shall be returned to the institution. It shall be the responsibility of the institution to arrange to take delivery of the records at the office of the Clerk. If photocopies were supplied, they need not be returned.
(5) Upon receipt of the documents and x-rays in connection with any pending action, the Clerk shall promptly notify all attorneys of record in the case in which the subpoena was issued that the documents involved have been delivered to the Court pursuant to the procedure outlined above. For purposes of this notice it will be considered adequate for the Clerk to inform the attorneys of the receipt of the record, the title and number of the case, and the name of the person to whom the record relates.
(6) Compliance with the foregoing procedures shall be generally construed as full compliance with the subpoena. In availing itself of the option afforded by this rule in responding to a subpoena, the institution shall take such action as the Court may direct on application of any party.
(h) 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 may impose upon the party or attorney in breach of the 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 produced and permit inspection and copying of designated books, papers, documents of 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 (i)(2) of this Rule, a person commanded to produce and permit inspection and copying 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 inspection or copying 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 and copy 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 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 and copying commanded.
(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.

(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 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.
(i) Duty in Responding to Subpoena.

(1) 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.
(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 ot enable the demanding party to contest the claim.

Del. Fam. Ct. R. Civ. P. 45

Amended June 14, 2020, effective September 1, 2020.