RULE 45. SUBPOENA

218

Rule 45.07: Protection of Persons Subject to Subpoena.

(1) A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a non-party witness subject to the subpoena and shall provide the non-party witness at least twenty-one (21) days after service of the subpoena to respond, absent agreement of the non-party witness or a court order.

(2) A non-party witness commanded to give deposition testimony or to produce documents or tangible things or to permit inspection shall serve on the party or attorney designated in the subpoena a written objection, if any, to having to give testimony or 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.  Such objection must be served on the party or attorney designated in the subpoena within twenty-one days after the subpoena is served.

(3) At any time, on notice to the commanded person, the serving party may move the issuing court for an order compelling testimony, production or inspection.

(4) The Court may: (1) grant the motion to compel testimony or production or inspection, or modify the subpoena if it is unreasonable and oppressive; or (2) condition the grant of the motion upon the advancement by the person in whose behalf the subpoena is issued of the reasonable costs of producing the books, papers, documents, electronically stored information, or tangible things.  The timely service of an objection obviates the need for compliance with the deposition subpoena pending further order of the court.  The failure to serve an objection within the time period specified herein waives all objections to the subpoena except the right to seek the reasonable costs for producing books, papers, documents, electronically stored information, or tangible things.

 

[As enacted by order entered January 29, 1987, effective August 1, 1987; and by order entered January 6, 2005, effective July 1, 2005; and amended by order entered January 8, 2009, effective July 1, 2009; by order filed December 21, 2010, effective July 1, 2011; and by order filed December 18, 2012, effective July 1, 2013.]

Advisory Commission Comments [2011].

Rule 45.07 was amended to clarify the obligations of one who chooses to object to a subpoena issued under this rule. If a person served with a subpoena wishes to challenge it for any reason, a motion to quash or modify must be filed within fourteen days of service, unless the time for compliance is less than fourteen days from the date of service, in which event the motion to quash or modify must be filed before the date and time specified for compliance. The failure to timely file a motion to quash or modify waives all objections to the subpoena except the right to seek reasonable costs for producing books, papers, documents, electronically stored information, or tangible things.

Advisory Commission Comments [20131].

Amended Rule 45.07 states the duty of an issuing party or attorney to avoid undue burden on the non-party witness receiving the subpoena.  It also eliminates the necessity for a non-party to file a motion to quash or modify a deposition subpoena for testimony or subpoena for production of documentary evidence.  The rule adopts the procedure under Fed. R. Civ. P. 45(c)(2)(B), permitting the subpoenaed non-party to serve a written objection on the party or attorney designated in the deposition subpoena.  This objection must be served within twenty-one days of service of the subpoena on the non-party.  The burden is shifted to the party issuing the subpoena to file a motion to compel.  The rule otherwise retains the method of enforcing a subpoena set out in former Tenn. R. Civ. P. 45.07.

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