Subpoena

(a) In General. (1) Form (See Appendix of Forms, Forms 6A, 6B, 6C, and 7A) and Contents. (A) Requirements—In General. Every subpoena must: (i) state the court from which it issued; (ii) state the title of the action and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place: testify; produce attend and designated documents, electronically stored information, or tangible things in that possession, custody, or control; or permit the inspection of premises; and (iv) set out the text of RCFC 45(d) person’s and (e). (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. (C) Combining or Separating a Command to Produce or to Permit Inspection; 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 67 RCFC 44.1 and 45 specify the form or forms in which electronically stored information is to be produced. (D) Command to Produce; Included in a Obligations. A command subpoena to produce documents, electronically stored information, or requires the tangible permit to person responding inspection, copying, testing, or sampling of the materials. things (2) Issuing Court. A subpoena must issue from the court where the action is pending. (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 also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court. the subpoena commands (4) Notice to Other Parties Before Service. If 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. (4) Proof of Service. Proving service, when necessary, requires filing with 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. (c) Place of Compliance. (1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where a person resides, is employed, or regularly transacts business in person; or (B) at any place within the United States if the person: is a party or a party’s officer; or (i) (ii) is commanded to attend a trial and would not incur substantial expense. (2) For Other Discovery. A subpoena may command: (A) production documents, of electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at premises to be inspected. the (d) Protecting a Person Subject to a (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 person’s subpoena attendance, tendering the fees for 1 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 any of its officers or agencies. requires that or party Subpoena; Enforcement. (1) Avoiding Undue Burden or Expense; Sanctions. A 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) Service in the United States. A subpoena may be served at any place within the United States. (3) Service 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. (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 RCFC 45 cont. 68 production or inspection unless also commanded a appear deposition, hearing, or trial. for to to inspecting (B) Objections. A person commanded to produce documents 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 the to premises—or 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 an 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 a reasonable time to comply; (ii) requires a person who is neither a party nor a party’s officer to comply beyond the limitations specified in RCFC 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception of 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 research, confidential development, or commercial information; or (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. (C) Specifying Conditions as a subpoena, an Alternative. In the circumstances described in RCFC 45(d)(3)(B), the court may, instead of quashing or order modifying 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 that (ii) ensures the subpoenaed reasonably person will be compensated. (e) 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. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the stored information in more than one form. electronically same (D) Inaccessible Electronically Stored Information. The person responding need not provide discovery of 69 RCFC 45 cont. sources as stored that not information electronically the person from identifies reasonably accessible because of undue burden to compel or cost. On motion 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 order discovery from such sources if the requesting party shows good cause, considering the limitations of RCFC 26(b)(2)(C). The court may specify conditions for the discovery. (2) Claiming Privilege or Protection. nonetheless to protection as (A) Information Withheld. A person withholding subpoenaed information under a claim that it is privileged or trial- subject preparation material must: (i) expressly make the claim; and the (ii) describe documents, withheld communications, or tangible things in a manner that, without revealing itself privileged or protected, will enable the parties to assess the claim. the nature of information (B) I n f o r m a t i o n P r o d u c e d. 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 is information until 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 the claim RCFC 46 70 information must preserve information until resolved. the claim the is (f) Transferring a Subpoena-Related Motion. [Not used.] (g) Contempt. The court may hold in contempt a person who, having been served, fails without adequate excuse the subpoena or an order related to it. to obey (As revised and reissued May 1, 2002; as amended Nov. 15, 2007, Nov. 3, 2008, July 1, 2014.) Rules Committee Notes 2002 Revision RCFC 45 conforms to FRCP 45 to the extent feasible given the court’s nationwide jurisdiction. 2007 Amendment RCFC 45 has been amended to reflect the corresponding changes to FRCP 45 that became effective December 1, 2006. 2008 Amendment The language of RCFC 45 has been amended to conform to the general restyling of the FRCP. 2014 Amendment changes in wording RCFC 45 has been amended to reflect the corresponding and organizational structure to FRCP 45 that became effective December 1, 2013. The changes to RCFC 45 are not substantive; they do not alter the practice and procedure authorized under the court’s rule.