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Rule 45. Subpoena

(a) IN GENERAL.

(1) Form and Contents.

(A) Requirements—In General. Every subpoena must:

(i) state the name of the court;

(ii) state the title of the action, its civil action number, the calendar number, when

known, and if assigned to a specific judge or magistrate judge, the name of that judge or

magistrate judge;

(iii) command each person to whom it is directed to do the following at a specified

time and place within the District of Columbia, unless the parties and person

subpoenaed otherwise agree or the court, upon application, fixes another convenient

location: attend and testify; produce designated documents, electronically stored

information, or tangible things in that person’s possession, custody, or control; or permit

the inspection of premises; and

(iv) set out the text of Rule 45(c) and (d).

(B) Command to Attend a Deposition—Notice of the Recording Method. A subpoena

commanding attendance at a deposition must state the method for recording the

testimony.

Specifying the Form for Electronically Stored Information. A command to produce

documents, electronically stored information, or tangible things or to permit the

inspection of premises may be included in a subpoena commanding attendance at a

deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may

specify the form or forms in which electronically stored information is to be produced.

(D) Command to Produce; Included Obligations. A command in a subpoena to

produce documents, electronically stored information, or tangible things requires the

responding person to permit inspection, copying, testing, or sampling of the materials.

(2) [Omitted].

(3) Issued by Whom. The clerk must issue a subpoena, signed but otherwise in blank,

to a party who requests it. That party must complete it before service. An attorney

authorized to practice in the District of Columbia also may issue and sign a subpoena.

(4) Notice to Other Parties Before Service. 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) SERVICE.

(1) By Whom and How; Tendering Fees. Any person who is at least 18 years old and

not a party may serve a subpoena. Serving a subpoena requires delivering a copy to

the named person and, if the subpoena requires that person's attendance, tendering the

fees for one day's attendance and the mileage allowed by law. Fees and mileage need

not be tendered when the subpoena issues on behalf of the United States or the District

of Columbia or any officers or agencies of either.

(2) Service in the District of Columbia. Subject to Rule 45(c)(3)(A)(ii), a subpoena may

be served at any place:

(A) within the District of Columbia;

(B) outside the District of Columbia but within 25 miles of the place specified for the

deposition, hearing, trial, production, or inspection; or

so provides.

(3) Serving in a Foreign Country. 28 U.S.C. § 1783 governs issuing and serving a

subpoena directed to a United States national or resident who is in a foreign country.

(4) Proof of Service. Proving service, when necessary, requires filing with the clerk of

the court a statement showing the date and manner of service and the names of the

persons served. The statement must be certified by the server.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for

issuing and serving a subpoena must take reasonable steps to avoid imposing undue

burden or expense on a person subject to the subpoena. The court must enforce this

duty and impose an appropriate sanction—which may include lost earnings and

reasonable attorney's fees—on a party or attorney who fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce documents,

electronically stored information, or tangible things, or to permit the inspection of

premises, need not appear in person at the place of production or inspection unless

also commanded to appear for deposition, hearing, or trial.

(B) Objections. A person commanded to produce documents, electronically stored

information, or tangible things or to permit inspection may serve on the party or attorney

designated in the subpoena a written objection to inspecting, copying, testing or

sampling any or all of the materials or to inspecting the premises—or to producing

electronically stored information in the form or forms requested. The objection must be

served before the earlier of the time specified for compliance or 14 days after the

subpoena is served. If objection is made, the following rules apply:

(i) At any time, on notice to the commanded person, the serving party may move

the court for an order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the order must

protect a person who is neither a party nor a party’s officer from significant expense

resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court must quash or modify a subpoena

that:

(i) fails to allow reasonable time to comply;

(ii) requires a person who is neither a party nor a party’s officer to travel more than

25 miles from where that person resides, is employed, or regularly transacts business in

person—except that, subject to Rule 45(c)(3)(B)(iii), the person may be commanded to

attend a trial by traveling from any such place to the place of trial;

(iii) requires disclosure of privileged or other protected matter, if no exception or

waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a subpoena, the

court may, on motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development, or

commercial information;

(ii) disclosing an unretained expert's opinion or information that does not describe

specific occurrences in dispute and results from the expert's study that was not

requested by a party; or

(iii) a person who is neither a party nor a party’s officer to incur substantial

expense to travel more than 25 miles to attend trial.

45(c)(3)(B), the court may, instead of quashing or modifying a subpoena, order

appearance or production under specified conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be otherwise

met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(d) DUTIES IN RESPONDING TO A SUBPOENA.

(1) Producing Documents or Electronically Stored Information. These procedures

apply to producing documents or electronically stored information:

(A) Documents. A person responding to a subpoena to produce documents must

produce them as they are kept in the ordinary course of business or must organize and

label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified. If a

subpoena does not specify a form for producing electronically stored information, the

person responding must produce it in a form or forms in which it is ordinarily maintained

or in a reasonably usable form or forms.

responding need not produce the same electronically stored information in more than

one form.

(D) Inaccessible Electronically Stored Information. The person responding need not

provide discovery of electronically stored information from sources that the person

identifies as not reasonably accessible because of undue burden or cost. On motion to

compel discovery or for a protective order, the person responding must show that the

information 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)(2)(C). The

court may specify conditions for the discovery.

(2) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information under a

claim that it is privileged or subject to protection as trial-preparation materials must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or tangible

things in a manner that, without revealing information itself privileged or protected, will

enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a subpoena 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; must not use or disclose the information

until the claim is resolved; must take reasonable steps to retrieve the information if the

party disclosed it before being notified; and may promptly present the information under

seal to the court for a determination of the claim. The person who produced the

information must preserve the information until the claim is resolved.

(e) TRANSFERRING A SUBPOENA-RELATED MOTION. A subpoena-related motion

may be transferred to the court where the action is pending if the person subject to the

subpoena consents or if the court finds exceptional circumstances. To enforce its order,

the court where the action is pending may transfer the order to the court where the

motion was made.

(f) CONTEMPT. The court may hold in contempt a person who, having been served,

fails without adequate excuse to obey the subpoena or an order related to it. A

nonparty’s failure to obey must be excused if the subpoena purports to require the

nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

COMMENT TO 2017 AMENDMENTS

This rule conforms to the 2013 amendments to Federal Rule of Civil Procedure 45

with the following exceptions: 1) subsection (a)(2) of the federal rule, which states that

“[a] subpoena must issue from the court where the action is pending,” has been omitted

as inconsistent with language in the Uniform Interstate Depositions and Discovery Act

(D.C. Code §§ 13-441 to -448 (2012 Repl.)) that instructs the Superior Court clerk to

“issue a subpoena for service upon the person to which the foreign subpoena is

directed”; 2) the amendment to permit service throughout the United States has been

omitted as inconsistent with D.C. Code § 11-942 (2012 Repl.); 3) new section (c) of the

federal rule has been rejected in order to maintain the Superior Court rule’s focus on

place of service, which is also the focus of D.C. Code § 11-942 (2012 Repl.); 4)

language in new section (e) (section (f) in the federal rule) has been modified to reflect

omission of federal subsection (a)(2); and 5) the second sentence in section (f) of the

federal rule, which authorizes an attorney to file papers and appear in a district court

where s/he may not be barred, has been rejected as locally inapplicable.

COMMENT

Identical to Federal Rule of Civil Procedure 45, as amended in 2007, except for: (1)

references to 100 mile limits in the federal rule have been changed to 25 miles, which

preserves the geographic proportionality originally expressed by Congress in D.C. Code

§ 11-942; (2) the omission of the inapplicable subsection (a)(2); (3) the addition of

language in subsection (a)(1)(A)(iii) providing that the deposition, production, or

inspection of documents must be in the District of Columbia, unless otherwise agreed or

ordered by the court; and (4) the substitution of specific local language for inapplicable

federal language in subsections (a)(1)(A)(i)–(ii), (a)(3), (b)(2), and (c)(3)(A)(ii).

This rule provides a means for issuing deposition subpoenas for nonresidents of the

District of Columbia in cases which qualify, but does not preclude the alternatives of

filing with the court a motion for appointment of an examiner under Rule 28-I or

resorting directly to the courts of another jurisdiction under its rules and statutes.

Subpoenas issued by attorneys under subsection (a)(3) must be substantially in the

format of Civil Action Form 14.