Advisory Commission Comments to Rules 45.01-45.08

Advisory Commission Comments

Advisory Commission Comment [2009]

The amendment to Rule 45.04(1) restates settled law. A deposition subpoena, like a trial subpoena, may be served anywhere in Tennessee.

Advisory Commission Comment [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 Comment [2012]

Rule 45.01 is amended to ensure that persons served with subpoenas receive adequate notice, simultaneously with service, that, as provided for in Rule 45.07, the failure to file a motion to quash or modify within fourteen days of service of the subpoena will result in the waiver of the right to seek relief from the subpoena (other than the right to seek the reasonable costs for producing books, papers, documents, electronically stored information, or tangible things). [The notice requirement in Rule 45.01, adopted in 2012, was subsequently deleted from Rule 45.01 and moved to Rule 45.04.  See Rule 45.04, Advisory Commission Comment (2013).]

Advisory Commission Comment [2012]

Tennessee has adopted the Uniform Interstate Depositions and Discovery Act, Tenn. Code Ann. §§ 24-9-201, et seq. The Act aids only the lawyer who wants to take a deposition or obtain discovery in Tennessee for use elsewhere. Tennessee lawyers seeking to take a deposition or obtain discovery in a foreign jurisdiction must look to that jurisdiction’s law for similar assistance.

Advisory Commission Comment [2013]

The amendment deletes language setting out a 14-day time period to file a motion to quash and requiring a notice on the face of the subpoena.  That language should not apply to a trial subpoena.  Because Rule 45.01 relates to subpoenas in general and the 14-day time period was intended to address the more limited circumstance when a non-party receives a deposition subpoena, the provisions setting out the timing and placing of the notice were deleted from this rule and moved to Rules 45.04 and 45.07, where they properly belong.

Advisory Commission Comment [2013]

The amendment requires a notice to be placed on a deposition subpoena issued to a non-party witness with the information that the witness has until twenty-one days after service of the subpoena to serve an objection to the subpoena on the issuing attorney.  This change is consistent with the removal of the requirement to file a motion to quash within the earlier of the date of compliance or 14 days from the date of service, as set out in former Rule 45.01.

Advisory Commission Comment [2013]

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.

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.]

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.

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.

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.

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.”

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

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