RULE 45

Alabama Rules of Civil Procedure

VI. TRIALS

Rule 45.

Subpoena.

(a) Form; issuance.

(1) Every subpoena shall

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in which it is

pending, and its civil action number; and

testimony or to produce and permit inspection, copying, testing, or

sampling of designated books, documents, electronically stored

information, 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 (c) and (d) of this rule.

A command to produce evidence or to permit inspection, copying, testing,

or sampling may be joined with a command to appear at trial or hearing or at

deposition, or may be issued separately. A subpoena may specify the form or

forms in which electronically stored information is to be produced.

(2) A subpoena commanding attendance at a trial or hearing and a

subpoena commanding attendance at a deposition shall issue from the court in

which the action is pending.

(3) The clerk shall issue a subpoena to a party requesting it, except that a

subpoena for production, inspection, copying, testing, or sampling separate from

a subpoena commanding the attendance of a person shall issue from the court in

which the action is pending pursuant to the additional requirements set forth

below:

(A) Notice of Intent to Serve Subpoena for Production or Inspection.

The party seeking issuance of a subpoena for production, inspection,

copying, testing, or sampling shall serve a notice to every other party of

the intent to serve such subpoena upon the expiration of fifteen (15) days

from the service of the notice, and the proposed subpoena shall be

attached to the notice. The court may allow a shorter or longer time. Such

notice may be served without leave of court upon the expiration of forty-

five (45) days after service of the summons and complaint or other mode

of service under Rule 4–Rule 4.4 upon any defendant, except that leave is

not required within the forty-five- (45-) day period if a defendant has

previously sought discovery.

(B) Objection to Issuance of Subpoena for Production or Inspection.

Any person or party may serve an objection to the issuance of a subpoena

for production, inspection, copying, testing, or sampling within ten (10)

days of the service of said notice and in such event the subpoena shall not

issue. The party serving the notice may move for an order under Rule

37(a) with respect to such objection. If no objection is timely served, the

clerk shall cause the subpoena to be issued upon the expiration of fifteen

(15) days from the service of the notice or upon the expiration of such

other time as may have been allowed by the court.

subpoena shall be directed to a person at a stated address, and, if the

name of the person is not known, the subpoena shall give a general

description sufficient to identify the person or the particular class or group

to which the person belongs. The subpoena shall set forth the items to be

produced, inspected, copied, tested, or sampled, either by individual item

or by category, and describe each item and category with reasonable

particularity. The subpoena shall specify a reasonable time to comply of

no less than fifteen (15) days after service unless the court orders

otherwise and the manner of making the inspection, production, copying,

testing, sampling, and performing the related acts. Such activities with

reference to documents, including electronically stored information, or

tangible things shall take place where the documents or tangible things

are regularly kept or at some other reasonable place designated by the

recipient. The subpoena may give the recipient an option to deliver or mail

legible copies of documents or things to the party serving the subpoena,

but the recipient may condition the preparation of copies on the payment

in advance of the reasonable cost of making such copies. Any other party

shall have the right to be present at the time of compliance with the

subpoena. The subpoena shall advise the recipient of the right to object at

any time prior to the date set forth in the subpoena for compliance

therewith.

(D) Availability of Copies of Documents. If the party serving the

subpoena obtains copies of documents, including electronically stored

information, or things, that party shall make available a duplicate of such

copies at the request of any other party upon the payment of the

reasonable cost of making such copies.

(b) Service.

(1) A subpoena issued on behalf of any party may be served by the

sheriff, a deputy sheriff, or any other person who is not a party, who is not

related within the third degree by blood or marriage to the party seeking service

of process, and who is not less than 19 years of age or by certified mail or

commercial carrier pursuant to the provisions of Rule 4. Service of a subpoena

upon a person named therein shall be made by delivering a copy thereof to such

person or by leaving a copy at the person's dwelling house or usual place of

abode with some person of suitable age and discretion then residing therein

and, if the person's attendance at a place more than 100 miles from the person's

residence is commanded, by tendering to that person the fees for one day's

attendance and an amount to reimburse the mileage allowed by law. Prior notice

of intent to secure the issuance of a subpoena to command production of

documents and things or inspection of premises before trial under the procedure

set forth in subparagraph (a)(3) of this rule shall be served on each party in the

manner prescribed by Rule 5(b).

(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this

rule, a subpoena may be served at any place within the state.

(3) Proof of service when necessary shall be made by filing with the clerk

of the court by which the subpoena is issued a statement of the date and manner

of service and of the names of the persons served, certified by the person who

made the service.

(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 from which the

subpoena was issued shall enforce this duty and impose upon the party or

attorney in breach of this duty an appropriate sanction, which may include, but is

not limited to, lost earnings and a reasonable attorney fee.

(2)(A) A person commanded to produce and permit inspection, copying,

testing, or sampling of designated electronically stored information, books,

papers, documents, or 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 subdivision (d)(2) of this rule, a person commanded to

produce and permit inspection, copying, testing, or sampling at any time before

the time specified for compliance may serve upon the party or attorney

designated in the subpoena written objection to producing any of or all the

designated materials or to inspection of the premises or to producing

electronically stored information in the form or forms requested. "Serve" as used

herein means mailing to the party or attorney. If objection is made, the party

serving the subpoena shall not be entitled to inspect, copy, test, or sample 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 the production, inspection, copying, testing, or

sampling. Such an order to compel shall protect any person who is not a party or

an officer of a party from significant expense resulting from the inspection,

copying, testing, or sampling 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 a resident of this state who is not a party or an officer of

a party to travel to a place more than one hundred (100) miles from the

place where that person resides, is employed, or regularly transacts

business in person, or requires a nonresident of this state who is not a

party or an officer of a party to travel to a place within this state more than

one hundred (100) miles from the place of service or, where separate from

the place of service, more than one hundred (100) miles from the place

where that person is employed or regularly transacts business in person,

except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule,

such a person may in order to attend trial be commanded to travel from

any such place within the state in which the trial is held, or

(iii) requires disclosure of privileged or other protected matter and

no exception or waiver applies, or

(iv) 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, or

(iii) requires a person who is not a party or an officer of a party to

incur substantial expense to travel more than 100 miles to attend trial,

the court may, to protect a person subject to or affected by the 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.

(d) Duties 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 to enable

the demanding party to contest the claim.

(3) If a subpoena does not specify the form or forms for producing

electronically stored information, a person responding to a subpoena must

produce the information in a form or forms in which the person ordinarily

maintains it or in a form or forms that are reasonably usable.

(4) A person responding to a subpoena need not produce the same

electronically stored information in more than one form.

(5) A person responding to a subpoena need not provide discovery of

electronically stored information from sources the person identifies to the

requesting party as not reasonably accessible because of undue burden or cost.

On motion to compel discovery or to quash, the person from whom discovery is

sought 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)(B). The court may specify conditions

regarding the production of the discovery.

(6) If information is produced in discovery that is subject to a claim of

privilege or of protection as trial-preparation material, the person or party 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 and may not use or

disclose the information until the claim is resolved. Any party or the producing

person may promptly present the information to the court under seal for a

determination of the claim. 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) Contempt. 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. An adequate cause for failure to obey exists when a

subpoena purports to require a nonparty to attend or produce at a place not

within the limits provided by clause (ii) of subparagraph (c)(3)(A).

(dc) District court rule. Rule 45 applies in the district courts.

[Amended eff. 10-1-95; Amended 11-4-2009, eff. 2-1-2010; Amended 12-6-2012,

eff 1-1-2013; Amended 2-19-2016, eff. 7-1-2016, Amended eff. 8-14-2023.]

Committee Comments on 1973 Adoption

The rule remedies the somewhat disorganized codification found in

present Alabama subpoena law, and brings together in one place the rules for

subpoenas of all types, providing one method of issuance, service and

enforcement. The present Alabama rule preventing the use of a deposition

subpoena duces tecum as to a non-party (Ex parte Thackston, 275 Ala. 424, 155

So.2d 526 (1963)), is no longer a problem. Unlike the Federal Rule, Rule 45(a)

does not permit the issuance of “in blank” subpoenas.

Alabama law has not required a subpoena to be under seal of the court;

the requirement of a seal in subdivision (a) of Federal Rule 46 has not been

included in this rule.

Subdivision (c) differs in some respects from the corresponding federal

rule. Compare Tit. 7, §§ 197, Code 1940, and § 12-21-180(c), Code of Ala. Of

course, Rule 45(e) permits service of a subpoena for attendance at a hearing or

trial anywhere in the state. In order to prevent abuse, Rule 45(c) provides for the

tendering of an attendance fee and mileage by the party causing the subpoena to

be issued when the witness resides more than 150 miles from the place of the

hearing or trial.

Rule 45(d)(2) is based on the corresponding Nevada rule, and on N.J.R.R.

4:46-4(b). Compare Minn.R.C.P. 45.04(2), by which a nonresident can be

required to attend the taking of a deposition anywhere within the state.

Under a statute to be superseded by these rules, Code of Ala., § 12-21-

180(b), a witness residing more than one hundred miles from the place of trial

cannot be subpoenaed save on an affidavit by the party or attorney calling him

that personal attendance of the witness is necessary to a proper decision of the

cause. See also Ky.R.C.P. 45.05(2), (3). No such limitation is contained in Rule

45(c) which allows subpoenas to run throughout the state. It will still be possible

to use the deposition of a witness who resides more than 100 miles from the

place of trial. Rule 32(a)(3)(B). The rules leave it to the good judgment of the

attorney whether to use the deposition or subpoena the witness, and end the

needless formality of an affidavit. Compare Rule 11.

The duties entrusted to the clerk by this rule may also be performed by the

Committee Comments to October 1, 1995,

Amendment to Rule 45

Subdivision (a). The amendment incorporates portions of recent revisions

to F.R.Civ.P. 45(a). It does not authorize an attorney to issue a subpoena as an

officer of the court as does F.R.Civ.P. 45(a). It authorizes the use of a subpoena

to compel production of evidence independent of a deposition. Former

Ala.R.Civ.P. 34 covered this subject. It preserves former Rule 34 for a forty-five-

(45-) day ban on discovery through subpoenas seeking evidence from a person

not a party separate from a deposition. It carries forward the procedure of former

Ala.R.Civ.P. 34 for filing and service of a notice of intent to issue subpoena and

the requirement that a copy of the notice be served on all other parties. It

maintains the option under former Ala.R.Civ.P. 34 for response by mailing and

the obligation of the party obtaining the discovery to make copies available to

other parties at a reasonable cost.

Subdivision (b). The amendment incorporates portions of recent revisions

to F.R.Civ.P. 45(b). It reduces the distance that triggers a duty to tender

expenses from one hundred fifty (150) miles to one hundred (100) miles. It

requires prior notice of intent to secure the issuance of a subpoena to command

production or inspection to be served on parties in the manner prescribed in Rule

5(b).

Subdivision (c). The amendment incorporates portions of recent revisions

to F.R.Civ.P. 45(c). The limitations in former Ala.R.Civ.P. 45 on requiring

attendance of a resident at a deposition to the county of residence and to within

forty (40) miles of service for nonresidents are replaced with a limit of one

hundred (100) miles from the residence, place of employment, or regular situs for

transacting business for residents and one hundred (100) miles from the place of

service for nonresidents. This change reflects the reality of the relatively small

size of Alabama’s sixty-seven counties and the availability of efficient means of

transportation. A similar change was made in federal practice in 1985. See

former F.R.Civ.P. 45(d)(2). This revision differs from current federal practice in

that it retains the place of service as one of the benchmarks for computing the

limit of travel for nonresidents. For example, an individual who had a place of

residence in New Orleans, Louisiana, but who regularly spent weekends at an

Alabama vacation home, would not be covered by F.R.Civ.P. 45(c)(3)(A)(ii) but is

covered by Ala.R.Civ.P. 45(c)(3)(A)(ii). Where attendance at trial more than one

hundred (100) miles from the places described in Rule 45(c)(3)(A)(ii) is required

by the subpoena, the witness may seek relief from hardship before attendance.

Rule 45(c)(3)(B)(iii). Under the prior rule, this protection was unavailable although

tender of statutory fees was required if the witness was required to travel more

than one hundred fifty (150) miles. See former Rule 45(c). Tender of statutory

fees is now required where travel exceeds one hundred (100) miles. See Rule

45(b)(1).

Subdivision (d). The amendment incorporates recent revisions to

F.R.Civ.P. 45(d).

Subdivision (e). The amendment incorporates recent revisions to

F.R.Civ.P. 45(e).

Committee Comments to Amendment to Rule 45

Effective February 1, 2010

See the Committee Comments to Amendment to Rule 26 Effective

February 1, 2010, for general information concerning the comprehensive

changes to Rules 16, 26, 33(c), 34, 37, and 45, which govern discovery of

electronically stored information ("ESI").

The changes to Rule 45 are intended to accommodate the discovery of

ESI from persons who are not parties on the same terms and conditions as

discovery of ESI from persons who are parties. However, there is substantial

difference between a party and an unrepresented person. The latter is likely

unaware of his or her rights, such as the right to object to producing ESI in the

form specified in the subpoena, his or her obligations to produce in the form in

which it is ordinarily maintained or a form that is reasonably usable, his or her

right to identify sources of ESI that are not reasonably accessible in lieu of

producing the material, and the procedures to be followed if privileged or

protected information is inadvertently produced.

Accordingly, the parties are reminded of their responsibility under

subdivision (c) of Rule 34 to avoid imposing undue burden or expense on

persons who are not parties, and the court is encouraged to enforce this

obligation. Moreover, Form 51A has been revised to help ensure that persons

who are not parties are not put to undue burden or expense.

Committee Comments to Amendment to

Rule 45(b)(1) Effective January 1, 2013

Rule 45(b)(1) is amended to include service of a subpoena by certified

mail pursuant to the applicable provisions of Rule 4. In 1977, an amendment to

then Rule 4.1 allowed service of a summons and complaint by certified mail, but

Rule 45 was never amended to extend that practice to subpoenas. In practice,

subpoenas are often served by certified mail, and it is reasonable for service of a

subpoena to be no more restrictive than service of a summons and complaint or

other process.

Committee Comments to Amendment to Rule 45(b)(1),

Effective July 1, 2016.

The amendment to Rule 45(b)(1) requires that a person serving a

subpoena must be not less than 19 years of age and must not be related within

the third degree by blood or marriage to the person seeking service of process.

This change is made to conform to the corresponding amendments to Rule

4(i)(1)(B) of these rules regarding service of process.

Committee Comments to Amendment of Rule 45(b)(1)

Effective August 14, 2023

Rule 4(i)(3) now permits the summons and complaint to be served by

commercial carrier. This corresponding amendment to Rule 45(b)(1), adding the

words "or commercial carrier," permits service of subpoenas in the same manner

as the service permitted in Rule 4(i)(3).

Note from the reporter of decisions: The order amending, effective

February 1, 2010, Rule 16, Rule 26, Rule 33(c), Rule 34, Rule 45, and Form 51A,

and adopting effective February 1, 2010, Rule 37(g) and the Committee

Comments to Amendment to Rule 16 Effective February 1, 2010, the Committee

Comments to Amendment to Rule 26 Effective February 1, 2010, the Committee

Comments to Amendment to Rule 33(c) Effective February 1, 2010, the

Committee Comments to Amendment to Rule 34 Effective February 1, 2010, the

Committee Comments to Adoption of Rule 37(g) Effective February 1, 2010, and

the Committee Comments to Amendment to Rule 45 Effective February 1, 2010,

is published in that volume of Alabama Reporter that contains Alabama cases

from 20 So. 3d.

Note from the reporter of decisions: The order amending, effective

January 1, 2013, Rule 1(a), Rule 45(b)(1), and Rule 82(d)(3), and adopting

effective January 1, 2013, Rule 58(d) and the Committee Comments to the

Amendment to Rule 1(a) Effective January 1, 2013, the Committee Comments to

the Amendment to Rule 45(b)(1) Effective January 1, 2013, the Committee

Comments to the Adoption of Rule 58(d) Effective January 1, 2013, and the

Committee Comments to the Amendment to Rule 82(d)(3) Effective January 1,

2013, are published in that volume of Alabama Reporter that contains Alabama

cases from 101 So. 3d.

Note from the reporter of decisions: The order amending Rule 45(b)(1),

Ala. R. Civ. P., and the adoption of the Committee Comments effective July 1,

2016, is published in that volume of Alabama Reporter that contains Alabama

cases from ___ So. 3d.

Note from the reporter of decisions: The order amending Rule

4(i)(2)(D), adopting Rule 4(i)(3), and amending Rule 45(b)(1), Alabama Rules of

Civil Procedure, adopting the Committee Comments thereto, and adopting Form

1C. and Form 1D., effective August 14, 2023, is published in that volume of

Alabama Reporter that contains Alabama cases from __ So. 3d.