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Rule 45 – Subpoena

May 14, 2021 | Civil Procedure, Ohio

(A) Form; Issuance; Notice.

(1) Every subpoena shall do all of the following:

(a) state the name of the court from which it is issued, the title of the action, and the case number;
(b) command each person to whom it is directed, at a time and place specified in the subpoena, to:

(i) attend and give testimony at a trial or hearing at any place within this state;
(ii) attend and give testimony at a deposition in the county where the deponent resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of court;
(iii) produce documents, electronically stored information, or tangible things at a trial, hearing, or deposition;
(iv) produce and permit inspection and copying of any designated documents or electronically stored information that are in the possession, custody, or control of the person;
(v) produce and permit inspection and copying, testing, or sampling of any tangible things that are in the possession, custody, or control of the person; or
(vi) permit entry upon designated land or other property that is in the possession or control of the person for the purposes described in Civ.R. 34(A)(3).
(c) set forth the text of divisions (C) and (D) of this rule.A command to produce and permit inspection may be joined with a command to attend and give testimony, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced, but may not require the production of the same information in more than one form.

A subpoena may not be used to obtain the attendance of a party or the production of documents by a party in discovery. Rather, a party’s attendance at a deposition may be obtained only by notice under Civ.R. 30, and documents or electronically stored information may be obtained from a party in discovery only pursuant to Civ.R. 34.

(2) The clerk shall issue a subpoena, signed, but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney who has filed an appearance on behalf of a party in an action may also sign and issue a subpoena on behalf of the court in which the action is pending.
(3) A party on whose behalf a subpoena is issued under division (A)(1)(b)(ii), (iii), (iv), (v), or (vi) of this rule shall serve prompt written notice, including a copy of the subpoena, on all other parties as provided in Civ.R. 5. If the issuing attorney modifies a subpoena issued under division (A)(1)(b)(ii), (iii), (iv), (v), or (vi) of this rule in any way, the issuing attorney shall give prompt written notice of the modification, including a copy of the subpoena as modified, to all other parties.
(B) Service

A subpoena may be served by a sheriff, bailiff, coroner, clerk of court, constable, or a deputy of any, by an attorney at law, or by any other person designated by order of court who is not a party and is not less than eighteen years of age. Service of a subpoena upon a person named therein shall be made by delivering a copy of the subpoena to the person, by reading it to him or her in person, by leaving it at the person’s usual place of residence, or by placing a sealed envelope containing the subpoena in the United States mail as certified or express mail return receipt requested with instructions to the delivering postal authority to show to whom delivered, date of delivery and address where delivered, and by tendering to the person upon demand the fees for one day’s attendance and the mileage allowed by law. The person responsible for serving the subpoena shall file a return of the subpoena with the clerk. When the subpoena is served by mail delivery, the person filing the return shall attach the signed receipt to the return. If the witness being subpoenaed resides outside the county in which the court is located, the fees for one day’s attendance and mileage shall be tendered without demand. The return may be forwarded through the postal service or otherwise.

(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.
(2)

(a) A person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this rule need not appear in person at the place of production or inspection unless commanded to attend and give testimony at a deposition, hearing, or trial.
(b) Subject to division (D)(2) of this rule, a person commanded to produce under divisions (A)(1)(b), (iii), (iv), (v), or (vi) of this rule may, within fourteen days after service of the subpoena or before the time specified for compliance if such time is less than fourteen days after service, serve upon the party or attorney designated in the subpoena written objections to production. If objection is made, the party serving the subpoena shall not be entitled to production except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena, upon notice to the person commanded to produce, may move at any time for an order to compel the production. 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 production commanded.
(3) On timely motion, the court from which the subpoena was issued shall quash or modify the subpoena, or order appearance or production only under specified conditions, if the subpoena does any of the following:

(a) Fails to allow reasonable time to comply;
(b) Requires disclosure of privileged or otherwise protected matter and no exception or waiver applies;
(c) Requires disclosure of a fact known or opinion held by an expert not retained or specially employed by any party in anticipation of litigation or preparation for trial as described by Civ. R. 26(B)(5), if the fact or opinion does not describe specific events or occurrences in dispute and results from study by that expert that was not made at the request of any party;
(d) Subjects a person to undue burden.
(4) Before filing a motion pursuant to division (C)(3)(d) of this rule, a person resisting discovery under this rule shall attempt to resolve any claim of undue burden through discussions with the issuing attorney. A motion filed pursuant to division (C)(3)(d) of this rule shall be supported by an affidavit of the subpoenaed person or a certificate of that person’s attorney of the efforts made to resolve any claim of undue burden.
(5) If a motion is made under division (C)(3)(c) or (C)(3)(d) of this rule, the court shall quash or modify the subpoena unless 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.
(D) Duties in responding to subpoena.

(1) A person responding to a subpoena to produce documents shall, at the person’s option, produce them as they are kept in the usual course of business or organized and labeled to correspond with the categories in the subpoena. A person producing documents or electronically stored information pursuant to a subpoena for them shall permit their inspection and copying by all parties present at the time and place set in the subpoena for inspection and copying.
(2) If a request does not specify the form or forms for producing electronically stored information, a person responding to a subpoena may produce the information in a form or forms in which the information is ordinarily maintained if that form is reasonably useable, or in any form that is reasonably useable. Unless ordered by the court or agreed to by the person subpoenaed, a person responding to a subpoena need not produce the same electronically stored information in more than one form.
(3) A person need not provide discovery of electronically stored information when the production imposes undue burden or expense. On motion to compel discovery or for a protective order, the person from whom electronically stored information is sought must show that the information is not reasonably accessible because of undue burden or expense. If a showing of undue burden or expense is made, the court may nonetheless order production of electronically stored information if the requesting party shows good cause. The court shall consider the factors in Civ. R. 26(B)(4) when determining if good cause exists. In ordering production of electronically stored information, the court may specify the format, extent, timing, allocation of expenses and other conditions for the discovery of the electronically stored information.
(4) 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.
(5) 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 receiving party must promptly return, sequester, or destroy the specified information and any copies within the party’s possession, custody or control. A party 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 of privilege or of protection as trial-preparation material. 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) Sanctions. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. A subpoenaed person or that person’s attorney who frivolously resists discovery under this rule may be required by the court to pay the reasonable expenses, including reasonable attorney’s fees, of the party seeking the discovery. The court from which a subpoena was issued may impose upon a party or attorney in breach of the duty imposed by division (C)(1) of this rule an appropriate sanction, which may include, but is not limited to, lost earnings and reasonable attorney’s fees.
(F) Privileges. Nothing in this rule shall be construed to authorize a party to obtain information protected by any privilege recognized by law, or to authorize any person to disclose such information.

Ohio. Civ.R. 45

Effective:July 1, 1970; amended effective July 1, 1971;July 1, 1972;July 1, 1993;July 1, 1994;July 1, 2005; amended effective July 1, 2008;July 1, 2012;July 1, 2014.

Staff Note (July 1, 2014 Amendments)

Rule 45(C)(3)(c) is amended to account for the 2008 renumbering of Civ.R. 26(B) which changed the section of that rule addressing experts from Civ.R. 26(B)(4) to Civ.R. 26(B)(5).

Staff Note (July 1, 2012 Amendment)

Rule 45 is amended to return language from Civ.R. 45 (D)(2) before the 1993 amendments. Under the 2012 amendment a deponent no longer may be compelled by subpoena to appear for a deposition anywhere in the state, but only in the county where the deponent resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of court. A person may still be compelled to appear for trial or hearing at any place within the state.

Staff Note (July 1, 2008 Amendment)

Rule 45 allows discovery to be obtained from nonparties in a manner that closely parallels Rule 34 discovery of parties. Civ. R. 45(A) and 45(D)(2) clarify that a party may use subpoenas to obtain electronically stored information from nonparties. It allows the party issuing the subpoena to specify the form or forms of production for electronically stored information while prohibiting the requesting party from demanding that the subpoenaed person provide the same information in more than one electronic format. For example, the party issuing the subpoena may request that a party’s internal memorandums on a particular subject be produced in a WordT file, while financial records be provided in an ExcelT spreadsheet format or other format commonly used for financial matters.

Civ. R. 45(B) is amended in light of court decisions holding that service of a subpoena by a mail carrier was not authorized under the prior language of the Rule. Consistent with Civ. R. 4.1(A) relating to service of process for a complaint and summons, the amendment allows a person, otherwise authorized by the Rule to perform service of a subpoena, to do so by means of United States certified or United States express mail.

Civ. R. 45(D)(2) parallels Rule 34(B) and applies when a party serving the subpoena does not specify the form in which electronically stored information should be produced; in that situation the person subpoenaed has the option of producing the materials in the form in which the information is ordinarily maintained or another form provided that the form produced is reasonable. This section also clarifies that the respondent only has to provide electronically stored information in one format unless the court orders or the parties agree to a different arrangement.

Staff Note (July 1, 2005 Amendment)

Rule 45(A) Form; Issuance; Notice

Civ. R. 45(A)(3) is amended so that provisions requiring notice of issuance of most types of subpoena directed to nonparties appear in Civ. R. 45(A)(3) rather than being split between Civ. R. 45(A)(3) and Civ. R. 34(C). Civ. R. 34(C) is concurrently amended to eliminate any reference to notice of issuance of a subpoena directed to a nonparty. The prior arrangement made it easy to overlook the notice provisions of Civ. R. 34(C). See, e.g., Neftzer v. Neftzer, 140 Ohio App.3d 618, 621 (2000).

The amendment adds a new first sentence to Civ. R. 45(A)(3) to require service as provided in Civ. R. 5 on all other parties of prompt written notice of any subpoena issued under Civ. R. 45(A)(1)(b)(ii), (iii), (iv), or (v). Unlike former Civ. R. 34(C), amended Civ. R. 45(a)(3) requires that notice include a copy of the subpoena.

Notice of the taking of a deposition upon oral examination, whether of a party or nonparty, is required by Civ. R. 30(B)(1) and service of questions for a deposition upon written questions, whether of a party or nonparty, is required by Civ. R. 31(B). See, e.g., Standring v. Xerox Corp., 1992 WL 90726 at *3-4, No. 60426 (8th Dist. Ct. App., Cuyahoga, 4-30-92). Subpoenas issued under Civ. R. 45(A)(1)(b)(i) for trial or hearing are excluded from the notice requirement of amended Civ. R. 45(A)(3) to permit a trial court to decide, pursuant to local rule, customary practice, or otherwise, whether to require prior disclosure by parties of the identity of witnesses to be called during a trial or hearing.

The notice requirement of amended Civ. R. 45(A)(3), like its counterpart in Rule 45(b)(1), Federal Rules of Civil Procedure, is intended “to afford other parties an opportunity to object to the production or inspection, or to serve a demand for additional documents or things.” Advisory Committee’s Note to 1991 Amendments to the Federal Rules of Civil Procedure; see, e.g., Spencer v. Steinman, 179 F.R.D. 484, 488 (E.D. Pa. 1998).

The title of Civ. R. 45(A) is amended to call attention to the fact that it deals with notice of issuance of subpoenas as well as with the form and issuance of subpoenas.