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Rule 2-510 – Subpoenas-Court Proceedings and Depositions

May 13, 2021 | Civil Prodcedure, Maryland

(a) Required, Permissive, and Non-permissive Use.

(1) A subpoena is required:

(A) to compel the person to whom it is directed to attend, give testimony, and produce designated documents, electronically stored information, or tangible things at a court proceeding, including proceedings before a magistrate, auditor, or examiner; and
(B) to compel a nonparty 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.
(2) A subpoena may be used to compel a party over whom the court has acquired jurisdiction 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.
(3) Except as otherwise permitted by law, a subpoena 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, the exclusion of evidence obtained as a result of the violation, and reimbursement of any person inconvenienced for time and expenses incurred.
(b) Issuance. A subpoena shall be issued by the clerk of the court in which an action is pending in the following manner:

(1) On the request of any person entitled to the issuance of a subpoena, the clerk shall (A) issue a completed subpoena, or (B) provide to the person a blank form of subpoena, which the person shall fill in and return to the clerk to be signed and sealed by the clerk before service.
(2) On the request of a member in good standing of the Maryland Bar entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed by the clerk, which the attorney shall fill in before service.
(3) An attorney of record in a pending action who is a registered user under Rule 20-101 may obtain from the clerk through MDEC, for use in that action, an electronic version of a blank form of subpoena containing the clerk’s signature and the seal of the court, which the attorney may download, print, and fill in before service.
(4) Except as provided in subsections (b)(2) and (b)(3) of this Rule, a person other than the clerk may not copy and fill in any blank form of subpoena for the purpose of serving the subpoena. A violation of this section shall constitute a violation of subsection (a)(3) of this Rule.

Committee note: This Rule does not apply to subpoenas issued under Code, Courts Article, Title 9, Subtitle 4 (Maryland Uniform Interstate Depositions and Discovery Act) requiring attendance at a deposition in this State. For subpoenas issued under that Act in conjunction with a deposition, see Rule 2-510.1. For discovery of documents, electronically stored information, and property from a party to an action pending in this State, other than in conjunction with a deposition, see Rule 2-422. For inspection of property of a nonparty in an action pending in this State and for discovery under the Maryland Uniform Interstate Depositions and Discovery Act that is not in conjunction with a deposition, see Rule 2-422.1.

(c) 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,
(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 court proceeding or 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 reissuance of a new subpoena.

(d) 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). Service of a subpoena upon a party represented by an attorney may be made by service upon the attorney under Rule 1-321(a). 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. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing. A person may not serve or attempt to serve a subpoena more than 60 days after its issuance. A violation of this provision shall constitute a violation of subsection (a)(3) of this Rule.

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.

(e) Objection to Subpoena for Court Proceedings. On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before a magistrate, auditor, or examiner) or a person named or depicted in an item specified in the subpoena filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order that justice requires to protect the person from annoyance, embarrassment, oppression, or undue burden or cost, including one or more of the following:

(1) that the subpoena be quashed or modified;
(2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena;
(3) that documents, electronically stored information, or tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or
(4) that documents, electronically stored information, or tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them.

A motion filed under this section based on a claim that information is privileged or subject to protection shall be supported by a description of the nature of each item that is sufficient to enable the demanding party to evaluate the claim.

(f) 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 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.

(g) 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 court proceeding or 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).
(h) 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.

(i) Records Produced by Custodians.

(1)Generally. A custodian of records served with a subpoena to produce records at trial may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The custodian may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records requested for the period designated in the subpoena and that the records are maintained in the regular course of business. The certification shall be prima facie evidence of the authenticity of the records.

Cross reference: Code, Health-General Article, § 4-306(b)(6); Code, Financial Institutions Article, § 1-304.

(2)During Trial. Upon commencement of the trial, the clerk shall release the records only to the courtroom clerk assigned to the trial. The courtroom clerk shall return the records to the clerk promptly upon completion of trial or at an earlier time if there is no longer a need for them. Upon final disposition of the action the clerk shall return the original records to the custodian but need not return copies.
(3)Presence of Custodian. When the actual presence of the custodian of records is required, the subpoena shall state with specificity the reason for the presence of the custodian.

Cross reference: Code, Courts Article, § 10-104 includes an alternative method of authenticating medical records in certain cases transferred from the District Court upon a demand for a jury trial.

(j) 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.
(k) 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 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. For issuing and enforcing legislative subpoenas, see Code, State Government Article, §§ 2-1802 and 2-1803.

Md. R. Civ. P. Cir. Ct. 2-510

This Rule is derived as follows:

Section (a) is new but the first and second sentences are derived in part from the 2006 version of Fed. R. Civ. P. 45(a)(1)(C); the second sentence also is derived in part from former Rule 407 a.

Section (b) is new.

Section (c) is derived from former Rules 114 a and b, 115 a and 405 a 2 (b), and from the 2006 version of Fed. R. Civ. P. 45(a)(1)(D).

Section (d) is derived from former Rules 104 a and b and 116 b. Section (e) is derived from former Rule 115 b and the 2006 version of Fed. R. Civ. P. 45(d)(2)(A).

Section (f) is derived from the 1980 version of Fed. R. Civ. P. 45(d)(1), and the 2006 version of Fed. R. Civ. P. 45(d)(2)(A).

Section (g) is new and is derived from the 2006 version of Fed. R. Civ. P. 45(d)(1).

Section (h) is derived from the 1991 version of Fed. R. Civ. P. 45(c)(1).

Section (i) is new.

Section (j) is derived from former Rules 114 d and 742 e.

Section (k) is new and is derived in part from the 2006 version of Fed. R. Civ. P. 45(d)(2)(B).

Adopted April 6, 1984, eff. July 1, 1984. Amended Feb. 10, 1998, eff. July 1, 1998; April 9, 2002, eff. July 1, 2002; Oct. 31, 2002, eff. Jan. 1, 2003; Nov. 12, 2003, eff. Jan. 1, 2004; Dec. 4, 2007, eff. Jan. 1, 2008; Oct. 4, 2013, eff. Jan. 1, 2014; March 2, 2015, eff. July 1, 2015; Sept. 17, 2015, eff. Jan. 1, 2016; Dec. 13, 2016, eff. Apr. 1, 2017; April 9, 2018, eff. July 1, 2018.

HISTORICAL NOTES

2002 Orders

The April 9, 2002, order added the cross reference following section (d).

The October 31, 2002, order, in section (d), in the first sentence, deleted “either following “delivering a copy and added “or as permitted by Rule 2-121(a)(3), and inserted the second sentence; in the caption of section (h), substituted “Records of Health Care Providers for “Hospital Records; in subsec. (h)(1), in the first sentence, substituted “health care provider, as defined by Code, Courts Article, § 3-2A-01(e) for “hospital, and in the second and fourth sentences, substituted “health care provider for “hospital; in the third sentence of subsec. (h)(2), substituted “health care provider for “hospital; and amended the cross reference following section (h).

2003 Orders

The November 12, 2003, order amended the source note.

2007 Orders

The December 4, 2007, order, rewrote this Rule, which previously read:

“(a) Use. A subpoena is required to compel the person to whom it is directed to attend, give testimony, and produce designated documents or other tangible things at a court proceeding, including proceedings before a master, auditor, or examiner. A subpoena is also required to compel a nonparty and may be used to compel a party over whom the court has acquired jurisdiction to attend, give testimony, and produce and permit inspection and copying of designated documents or other tangible things at a deposition. A subpoena shall not be used for any other purpose. If the court, on motion of a party alleging a violation of this section or on its own initiative, after affording the alleged violator a hearing, finds that a party or attorney used or attempted to use a subpoena for a purpose other than a purpose allowed under this section, the court may impose an appropriate sanction upon the party or attorney, including an award of a reasonable attorney’s fee and costs, the exclusion of evidence obtained by the subpoena, and reimbursement of any person inconvenienced for time and expenses incurred.

“(b) Issuance. On the request of a person entitled to the issuance of a subpoena, the clerk shall issue a completed subpoena, or provide a blank form of subpoena which shall be filled in and returned to the clerk to be signed and sealed before service. On the request of an attorney or other officer of the court entitled to the issuance of a subpoena, the clerk shall issue a subpoena signed and sealed but otherwise in blank, which shall be filled in before service.

“(c) Form. Every subpoena shall contain: (1) the caption of the action, (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 or other tangible things to be produced, and (6) when required by Rule 2-412(d), a notice to designate the person to testify.

“(d) 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). Service of a subpoena upon a party represented by an attorney may be made by service upon the attorney under Rule 1-321(a). 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. Unless impracticable, a party shall make a good faith effort to cause a trial or hearing subpoena to be served at least five days before the trial or hearing.

“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.

“(e) Objection to Subpoena for Court Proceedings. On motion of a person served with a subpoena to attend a court proceeding (including a proceeding before a master, auditor, or examiner) filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance, the court may enter an order that justice requires to protect the person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

“(1) that the subpoena be quashed or modified;

“(2) that the subpoena be complied with only at some designated time or place other than that stated in the subpoena;

“(3) that documents or other tangible things designated in the subpoena be produced only upon the advancement by the party serving the subpoena of the reasonable costs of producing them; or

“(4) that documents or other tangible things designated in the subpoena be delivered to the court at or before the proceeding or before the time when they are to be offered in evidence, subject to further order of court to permit inspection of them.

“(f) 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 or other tangible things at the deposition, the person served 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 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.

“(g) 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 expense 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.

“(h) Records of Health Care Providers.

“(1) A health care provider, as defined by Code, Courts Article, § 3-2A-01(e), served with a subpoena to produce at trial records, including x-ray films, relating to the condition or treatment of a patient may comply by delivering the records to the clerk of the court that issued the subpoena at or before the time specified for production. The health care provider may produce exact copies of the records designated unless the subpoena specifies that the original records be produced. The records shall be delivered in a sealed envelope labeled with the caption of the action, the date specified for production, and the name and address of the person at whose request the subpoena was issued. The records shall be accompanied by a certificate of the custodian that they are the complete records for the patient for the period designated in the subpoena and that the records are maintained in the regular course of business of the health care provider. The certification shall be prima facie evidence of the authenticity of the records.

“(2) Upon commencement of the trial, the clerk shall release the records only to the courtroom clerk assigned to the trial. The courtroom clerk shall return the records to the clerk promptly upon completion of trial or at an earlier time if there is no longer a need for them. Upon final disposition of the action, the clerk shall return the original records to the health care provider but need not return copies.

“(3) When the actual presence of the custodian of medical records is required, the subpoena shall so state.

“Cross reference: Code, Courts Article, § 10-104 includes an alternative method of authenticating medical records in certain cases transferred from the District Court upon a demand for a jury trial. Code, Health-General Article, § 4-306 requires that a subpoena to produce medical records without the authorization of a person in interest be accompanied by a certification that a copy of the subpoena has been served on the person whose records are being sought or that the court has waived service for good cause.

“(i) 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.

“Source: This Rule is derived as follows:

“Section (a) is new but the second sentence is derived in part from former Rule 407 a.

“Section (b) is new.

‘Section (c) is derived from former Rules 114 a and b, 115 a and 405 a 2(b).

“Section (d) is derived from former Rules 104 a and b and 116 b.

”Section (e) is derived from former Rule 115 b.

“Section (f) is derived from the 1980 version of Fed. R. Civ. P. 45(d)(1).

“Section (g) is derived from the 1991 version of Fed. R. Civ. P. 45(c)(1).

“Section (h) is new.

“Section (i) is derived from former Rules 114 d and 742 e.’

2012 Orders

The October 4, 2012, order added language to sections (e) and (f) that refers to persons named or depicted in an item specified in the subpoena.

2015 Orders

The March 2, 2015, order reorganized the Rule, to provide for a uniform subpoena form approved by the State Court Administrator; added certain provisions concerning the use and copying of subpoena forms; added to a subpoena form a date of issuance and a certain statement as to when a subpoena may be served; prohibited serving or attempting to serve a subpoena more than 60 days after the date of issuance; added a Committee note following section (c); permitted electronic issuance of a blank form of subpoena under certain circumstances; and made stylistic changes.

The September 17, 2015, order, changed the term “master to “magistrate.

2016 Orders

The December 13, 2016, order, amended the rule to change the title of the Rule; to add clarifying language to subsection (a)(3); to add a Committee note following section (b); to delete references to work product in sections (e), (f), and (k); to add to section (k) a certain notification requirement pertaining to items that may have been inadvertently sent; to delete a sentence pertaining to options available to a party that had received certain information; to permit any party to file a motion under section (k) and add language clarifying the circumstances under which the motion is appropriate; to require preservation of a certain item pending a ruling by the court; to add a cross reference following section (k); and to make stylistic changes.

2018 Orders

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