SJC Changes Subpoena Rules For Massachusetts Litigants
Earlier this year, the Supreme Judicial Court (“SJC”) announced some important changes to Rule 45 of the Massachusetts Rules of Civil Procedure, which governs subpoenas served on non-parties in the course of lawsuits in Massachusetts courts.
Most significantly, Rule 45 now explicitly permits a litigant to serve a “documents only” subpoena on a non-party – i.e., a request that the person or entity provide certain documents, without any accompanying request for attendance at a deposition.
Prior Version Of Rule
Commonly, a litigant in a civil suit simply wants to obtain specific documents from a non-party and does not anticipate that deposition testimony by the non-party will be needed. Previously, however, Rule 45 did not provide a mechanism for such a “documents only” subpoena.
Thus, in order to obtain documents from a non-party, litigants in Massachusetts courts had to go through the somewhat laborious process of serving a deposition subpoena duces tecum ( i.e., a notice to appear for a deposition along with specified documents) on the non-party, accompanied by an explanation that the non-party would not actually be required to appear for a deposition as long as the requested documents were produced by a certain date. This process resulted in unnecessary paperwork and expense, as well as potential confusion for non-parties receiving such subpoenas.
Rule 45 now explicitly authorizes “documents only” subpoenas and sets forth certain procedures for them. In particular, the party serving such a subpoena must serve a copy of it on each of the other parties before serving it on the non-party to whom it is directed. Unlike the equivalent federal rule, Rule 45 does not require that a separate notice of subpoena be served, in addition to the subpoena itself.
If a non-party receiving a “documents only” subpoena objects to it, the serving party must serve a copy of the objection on each party, as well as a notice of any document production made by the non-party. If the non-party does not object to the subpoena, the serving party must provide a copy of the non-party’s document production to each party. Here, as well, the equivalent federal rule does not include such requirements.
Another difference between the new Rule 45 and the federal rules is the requirement that a court order to compel production “protect a person who is neither a party nor a party’s officer from undue burden or expense resulting from compliance.” The Reporter’s Notes accompanying the revised Rule 45 point out that this language is an “intentional variation from the federal rules,” which simply require that a non-party be protected from “significant expense resulting from compliance” with a subpoena. The Reporter’s Notes go on to state that the revisions to Rule 45 are intended to provide a court with broad discretion to require appropriate cost-sharing as part of an order to produce documents.
Other Amendments To Rule 45
Other new provisions incorporated in the amended Rule 45 include the following:
- The requirement that witness fees accompany subpoenas served on non-parties does not apply to “documents only” subpoenas.
- Copies of subpoenaed documents, as opposed to originals, may be produced, as long as all parties have a “fair opportunity to verify the copies by comparison with the originals.”
- Documents responsive to a subpoena may be produced “by electronic means.”
- A “privilege log” (which describes documents withheld on the basis of a claim of privilege, such as the attorney-client privilege) need not be prepared, unless the court orders a privilege log to be prepared, or the parties agree to do so.
In other significant aspects, the amended Rule 45 does not differ from the prior version. For example:
- A party issuing a subpoena still must take “reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”
- If a subpoena appears too broad or otherwise unduly burdensome, the person to whom the subpoena is directed may serve a written objection within 10 days after service of the subpoena. The serving party may then file a motion to compel production of the requested documents.
- Residents of the Commonwealth may not be required to attend a deposition more than 50 airline miles from their residence, place of business, or place of employment.
Recommendations For Employers
Employers are advised to review the recent amendments to Rule 45, as these changes may affect ongoing or future litigation in Massachusetts courts. In addition, employers should monitor further developments in this area, including court decisions applying the new provisions of the rule.
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If you have any questions about the amendments to Rule 45 or any other litigation-related issue, please do not hesitate to contact us.