RULE 45. SUBPOENA

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Rule 45.08: Duties in Responding to Subpoena.

(1) (A) 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.

(B) 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.

(C) A person responding to a subpoena need not produce the same electronically stored information in more than one form.

(D) A person responding to a subpoena 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 to quash, the person from whom discovery is sought must show that the information sought 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. The court may specify conditions for the discovery including, but not limited to the allocation of costs pursuant to the guidelines in Rule 26.06.

(2) (A) 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.

(B) 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 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. A receiving party 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.

[As enacted by order entered January 29, 1987, effective August 1, 1987. Amended by order effective July 1, 2005, and by order entered January 8, 2009 and effective July 1, 2009.]

Advisory Commission Comments.

45.01: This Rule provides for the issuance of a subpoena, signed by the clerk or other authorized officer but otherwise in blank, in accord with custom of long standing in many counties.

45.02: Upon motion the court may quash or modify a subpoena duces tecum if it is unreasonable or oppressive and may require the party issuing the subpoena to advance reasonable costs of production of documents.

45.03: This Rule requires personal service upon a witness, unlike the prior practice, authorized by Tenn. Code Ann. § 24-206 [repealed], of leaving a copy of a subpoena at the usual place of residence of a witness who could not be found.

45.05: The first subparagraph of this Rule expressly authorizes service of a subpoena at any place within the state.

The second subparagraph recognizes the exemptions from personal attendance given by statute, Tenn. Code Ann. § 24-9-101, but authorizes the court, in its discretion, to order the personal attendance of such witnesses.

The reference to Rule 32.01(3) is a housekeeping change to conform to the 1979 rearrangement of discovery rules. [1986.]

45.07: The Commissioners were advised that the practice has developed of a lawyer serving a subpoena duces tecum and obtaining documents without informing opposing counsel. While believing that the language of the original rule required that a subpoena be served in connection with a deposition or trial, the Advisory Commission recommends the additional language to clarify the rule. Under the amendment, service of a subpoena that does not direct the person served to attend a deposition, hearing, or trial would be ineffective and unethical. See Tenn. Sup. Ct. R. 8, RPC 3.4(c). [1987.]

Under the Hospital Records as Evidence provisions of Tenn. Code Ann. § 68-11-401 et seq., a custodian can comply with a subpoena duces tecum by sending sealed copies of records to the court clerk or court reporter. Tenn. Code Ann. § 68-11-402(b) contemplates a trial and notice to opposing counsel. If someone other than the patient's lawyer subpoenas hospital records under this statutory procedure, the sealed envelope cannot be opened without the patient's consent. Tenn. Code Ann. § 68-11-404. [1987.]

Advisory Commission Comments [1995].

The amendment to Rule 45.05 deleted the provision prohibiting a trial subpoena for deponent located more than 100 miles from the courthouse on trial day. With this amendment, a lawyer has the option of using the deposition or calling the deponent as a witness.

Advisory Commission Comments [1999].

45.01, 45.04: The Tennessee Constitution, Article VI, Section 12, requires that "all writs and other process. . . be signed by the respective clerks." Consequently, Rules 45.01 and 45.04 were amended to forbid others from issuing subpoenas, as they had no constitutional power to do so.

Advisory Commission Comments [2005].

Under prior Rules 45.02 and 45.07, a party seeking the production of books, papers, documents, or tangible things, or inspection of premises, was required to issue a subpoena for the testimony of the custodian. The amendment to Rule 45.02 allows a subpoena for production of documentary evidence without requiring the custodian’s attendance at a deposition. The rule also requires the person responding to provide an affidavit authenticating the documentary evidence produced pursuant to the subpoena and stating whether or not all responsive material has been produced. The rule requires that all parties have access to the material produced pursuant to subpoena. The procedures in this Rule compel the production of documents for review, but do not necessarily authenticate documents pursuant to Rule 902 of the Tennessee Rules of Evidence. This Rule also provides that a subpoena may command the inspection of a premises.

Advisory Commission Comments [2009].

Rule 45 is amended to conform the provisions for subpoenas to changes in other discovery rules, largely related to discovery of electronically stored information. Rule 45.02 is amended to recognize that electronically stored information can also be sought by subpoena. Rule 45.02 is amended to provide that the subpoena can designate a form or forms for production of electronic data.

Rule 45.02 is also amended to provide that a subpoena is available to permit testing and sampling, as well as inspection and copying. This change recognizes that on occasion the opportunity to perform testing or sampling may be important, both for documents and for electronically stored information.

Inspection or testing of certain types of electronically stored information or of a person's electronic information system may raise issues of confidentiality or privacy. The addition of sampling and testing to Rule 45.02 with regard to documents and electronically stored information is not meant to create a routine right of direct access to a person's electronic information system, although such access might be justified in some circumstances. Courts should guard against undue intrusiveness resulting from inspecting or testing such systems.

Rule 45.02, paragraphs 2 and 3 have been adopted from Rule 10(c) and (d) of the Uniform Rules Relating to Discovery of Electronically Stored Information, National Conference of Commissioners on Uniform State Laws (2007).

New Rule 45.08 authorizes the person served with a subpoena to object to the requested form or forms. In addition, Rule 45.08 provides that if the subpoena does not specify the form or forms for electronically stored information, the person served with the subpoena must produce electronically stored information in a form or forms in which it is usually maintained or in a form or forms that are reasonably usable. Rule 45.08 also provides that the person producing electronically stored information should not have to produce the same information in more than one form unless so ordered by the court for good cause.

Rule 45.08(2), like amended Rule 26.02(5), adds a procedure for assertion of privilege or of protection as trial-preparation materials after production. The receiving party may submit the information to the court for resolution of the privilege claim, as under Rule 26.02(5).

With reference to Rule 45.08(1)(C), Guideline 6 of the Guidelines for State Trial Courts Regarding Discovery of Electronically-Stored Information, Conference of Chief Justices (2006), states: "In the absence of agreement among the parties, a judge should ordinarily require electronically-stored information to be produced in no more than one format and should select the form of production in which the information is ordinarily maintained or in a form that is reasonably usable."

Advisory Commission Comments [2010].

The title of Rule 45.02 is expanded to conform to the language in the rule.

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