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Rule 45 – Subpoena

May 15, 2021 | Civil Procedure, Civil Procedure common pleas, Delaware

(a) For attendance of witnesses; form; issuance. Every subpoena shall be issued by the Clerk of the Court under the seal of the Court, shall state the name of the Court and the title of the action, and shall command each person to whom it is directed to attend and give testimony at a time and place therein specified. The party requesting the issuance of a subpoena shall prepare a form thereof for signature by the Clerk of the Court under the seal of the Court. Blank forms shall be provided by the Clerk of the Court on request of a party. The Clerk of the Court 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.
(b) For production of documentary evidence. A subpoena may also command the person to whom it is directed to produce the books, papers, documents or tangible things designated therein; but the Court, upon motion made promptly and in any event at or before the time specified in the subpoena for compliance therewith, may (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) condition denial of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable cost of producing the books, papers, documents, or tangible things.
(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 the subpoena upon a person named therein shall be made by delivering a copy thereof to such a person.
(d) Subpoena for taking depositions. A party issuing a notice of deposition provided for in Rules 30(b) and 31(a) may serve a subpoena as provided for in paragraph (a) of this Rule. 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(b), but in that event the subpoena will be subject to the provisions of Rule 26(c) and subdivision (b) of this Rule. The person to whom the subpoena is directed may, within 10 days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than 10 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 in the State of Delaware may be compelled by whatever means are available under the laws of the place where the examination is held.

(e) Medical records. The following procedure shall govern production of medical records under subpoena for trial purposes:

(i) 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 or mental 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 of the Court issuing the subpoena, the original record, including all documents and x-rays relating to the medical record, and meets all the other requirements hereinafter stated.
(ii) The aforesaid shall be accompanied by a sworn certificate signed by the medical records librarian or an authorized official of the institution involved verifying that it is the complete original medical record subpoenaed.
(iii) The documents and x-rays so delivered shall be kept in the custody of the Clerk of the Court issuing the subpoena, 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 of the Court shall be charged with the custody and preservation of the envelope and its contents and shall not release them from the Clerk’s 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 or copy such records while they remain within the custody of the Clerk.
(iv) 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 (ii) above shall constitute sufficient evidence of genuineness of the record.
(v) 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, said 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.
(vi) 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.
(vii) 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.
(f) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt.

Del. Civ. R. C.P. 45