(a) Form; Issuance.
(1) Every subpoena shall:
(A) state the name of the court from which it is issued; and
(B) state the title of the action, the name of the court in which it is pending, and its civil action number; and
(C) command each person to whom it is directed to attend and give testimony or produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
(D) set forth the text of subdivisions (c) and (d) of this rule.
A command to produce evidence or to permit inspection may be joined with a command to appear at trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or forms in which electronically stored information is to be produced.
(2) A subpoena commanding attendance at a trial or hearing shall issue from the court for the county in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the court for the county designated by the notice of deposition as the county in which the deposition is to be taken. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the court for the county in which production or inspection is to be made. Provided, however, that a subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection shall issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person.
(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it, who shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena on behalf of a court in which the attorney is authorized to practice.
(1) A subpoena may be served by any person who is not a party and is not less than 18 years of age. Service of a subpoena upon a person named therein shall be made in the same manner prescribed for service of a summons and complaint in Rule 4(d) or (j), and, if the person’s attendance is commanded, by tendering to that person the fees for one day's attendance of $25.00 and the mileage allowed by law for official travel of State officers and employees. When the subpoena is issued on behalf of the State of South Carolina or an officer or agency thereof, fees and mileage need not be tendered. Unless otherwise ordered by the court, prior notice in writing of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance.
(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a subpoena may be served at any place within the State. Provided, however, that a subpoena to a person who is not a party or an officer, director or managing agent of a party, commanding attendance at a deposition or production or inspection shall issue from the court for the county in which the non-party resides or is employed or regularly transacts business in person and be served in that county.
(3) Proof of service when necessary shall be made by filing with the clerk of the court by which the subpoena is issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service.
(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court on behalf of which the subpoena was issued shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
(2)(A) A person commanded to produce and permit inspection and copying of designated electronically stored information, books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. A party or an attorney responsible for the issuance and service of a subpoena for production of books, papers and documents without a deposition shall provide to another party copies of documents so produced upon written request. The party requesting copies shall pay the reasonable costs of reproduction.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises—or to producing electronically stored information in the form or forms requested. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce, move at any time in the court that issued the subpoena for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3)(A) On timely motion, the court by which a subpoena was issued, or regarding a subpoena commanding appearance at a deposition, or production or inspection directed to a non-party, the court in the county where the non-party resides, is employed or regularly transacts business in person, shall quash or modify the subpoena if it:
(i) fails to allow reasonable time for compliance; or
(ii) requires a person who is not a party nor an officer, director or managing agent of a party, nor a general partner of a partnership that is a party, to travel more than 50 miles from the county where that person resides, is employed or regularly transacts business in person, except that, subject to the provisions of clause (c)(3)(B)(iii) of this rule, such a person may in order to attend trial be commanded to travel from any such place within the state in which the trial is held; or
(iii) requires disclosure of privileged or otherwise protected matter and no exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) If a subpoena:
(i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
(ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, or
(iii) requires a person who is not a party nor an officer, director or managing agent of a party, nor a general partner of a partnership that is a party, to incur substantial expense to travel from the county where that person resides, is employed or regularly transacts business in person, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.
(d) 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 it is ordinarily maintained or in a reasonably usable form or forms.
(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, considering the limitations of Rule 26(b)(6)(B). The court may specify conditions for the discovery.
(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 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 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, the receiving party must take reasonable steps to retrieve the information. The person who produced the information must preserve the information until the claim is resolved.
(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena issued. An adequate cause for failure to obey exists when a subpoena purports to require a non-party to attend a deposition, permit an inspection, or produce at a place not within the limits provided by clause (ii) of subparagraph (c)(3)(A); or if served without an adequate time to respond as provided in Rule 45(b)(1); or if service is made upon an individual under Rule 4(d)(1) and the individual did not receive or acknowledge the subpoena.
This Rule 45 is substantially the same as the Federal Rule, modified to the limits of State court jurisdiction. Rule 45(b) is modified to conform to new Circuit Court Rule 106. The Federal Rule has been little changed for 40 years and is familiar to South Carolina practitioners. It offers several simplifications of present State practice: (1) The Clerk of Court issues the subpoena “duces tecum” under Rule 45(b), as well as the subpoena to compel attendance of witnesses. (A “standard form” is provided for all clerks, which may be issued to counsel in advance for use as needed.). (2) Service runs statewide and is not confined to one county. (3) One form replaces the old “subpoena writ” with “tickets” attached for each witness. Rule 45(g) is added to provide reasonable per diem and mileage for witnesses. The “Uniform Act to Secure Attendance of Witness from Without the State in Criminal Proceedings,” Code § 19-7-50, et seq., is not affected.
Note to 1993 Amendment:
Rule 45 is amended to conform to federal Rule 45, as amended in December 1991. The major purposes of that amendment, which are adopted here, are to simplify the procedure for issuing a subpoena and to clarify and enlarge the protection of non-parties who are compelled to assist the court in the proceedings, as well as to facilitate access to materials without the necessity of a deposition. The federal rule made other changes in the methods of issuing subpoenas in districts other than the one in which the action is pending which are not relevant to state practice.
Much of the practice remains the same including who may serve the subpoena, the right to object to production in writing, and to require the issuing party to obtain a court order before inspecting the documents. The major changes are: (1) the attorney signs and issues the subpoena on behalf of the court; (2) documents, materials or an inspection can be obtained from a non-party without obtaining a deposition; and (3) the non-party's rights are expanded and clarified. In this context, paragraph (a)(2) provides that a subpoena for trial is issued by the court where the action is pending and under paragraph (b)(2) may be served throughout the state. The subpoenaed person may move under (c)(3)(A) to quash or modify the subpoena in the issuing court, which is the court where the action is pending, and may obtain relief if the subpoena requires travel of more than 50 miles from where the non-party resides, is employed or regularly transacts business.
The rights of a non-party subpoenaed for a deposition are enlarged and clarified. Under paragraph (a)(2) the subpoena for a non-party deposition, production or inspection is issued by the court in the county where the person resides, is employed or regularly transacts business, and served there. Under paragraph (c)(3)(A) the non-party can object to the subpoena in his home county, if different from the place where the action is pending. Finally, paragraph (e) makes clear that a subpoena to a non-party for a deposition, inspection or production, requiring travel beyond 50 miles of the county where the individual resides, is employed or regularly transacts business, provides an adequate excuse for failure to respond, and avoids a sanction for contempt.
The following material discusses each provision of the new rule. Paragraph (a)(1) defines the form of the subpoena. It no longer requires that the subpoena bear the seal of the court. Subparagraph (D) now requires that the subpoena contain language of paragraphs (c) Protection of Persons Subject to Subpoenas, and (d) Duties in Responding to Subpoena, to alert the person subpoenaed about the rights and obligations under Rule 45.
Paragraphs (a)(1) and (c)(2)(A) permit a subpoena for the production of documents or inspection without requiring a deposition. This adopts a common practice which was not authorized by the prior rule which required the deposition of a non-party to obtain production or inspection from a non-party. The last sentence of paragraph (b)(1) requires ten (10) days written notice to other parties if production is requested without a deposition.
Paragraph (a)(2) states that the subpoena for trial or hearing is issued by the court for the county where the action is pending. A subpoena for a deposition is issued by the county where the deposition is to take place. A subpoena for the deposition of a non-party is issued where the non-party resides, is employed or regularly transacts business in person. Specifying the court that issues the subpoena is important because motions to quash or enforce a non-party subpoena are brought in the issuing court which might be different from the court where the action is pending.
Paragraph (a)(3) provides that the clerk is to issue the subpoena in blank if the subpoena is requested by an unrepresented party, but the attorney is also authorized to sign the subpoena on behalf of any court in which he is licensed to practice. There is no requirement that the subpoena bear the seal of the court. The attorney signs and issues it as an officer of the court.
Paragraph (b)(1) defines who can serve a subpoena, and specifies that it is by delivery to the person subpoenaed along with tendering the witness fee and mileage. This clarifies the procedure for service.
Paragraph (b)(2) provides that subpoenas may be served throughout the state subject to two exceptions. First, (c)(2)(A)(ii) requires the appropriate court to quash or modify a subpoena on several grounds. Second, a non-party subpoena can only be issued and served in the county where the non-party resides, is employed or regularly transacts business in person. Paragraph (b)(3) describes how proof of service of the subpoena is to be made.
Paragraph (c)(1) states the duty of the attorney to avoid undue burden on the subpoenaed person and authorizes the issuing court to enforce this duty by imposing sanctions including, but not limited to, lost earnings and reasonable attorney's fees.
Paragraph (c)(2)(A) permits a subpoena for the production of documents without the necessity of also scheduling a deposition. Ten (10) days written notice to other parties is required under the last sentence of (b)(1) if there is no deposition. Rule 30 requires similar notice of all depositions.
Paragraph (c)(2)(B) is taken from former Rule 45(d) which authorized a person subpoenaed to object in writing to the production, and required the person seeking the information to obtain a court order before inspecting the documents. This order is obtained from the court that issued the subpoena, and, in the case of a non-party, would be the court in the county where the non-party resides, is employed or regularly transacts business in person, if different from the court where the action is pending.
Paragraph (c)(3)(A) states that the court shall quash or modify the subpoena if there is no reasonable time to comply, requires excessive travel, calls for privileged material or creates an undue burden. Paragraph (c)(3)(B)(i) authorizes the court to quash or modify the subpoena if it requires disclosure of trade secrets. Sub-paragraph (ii) protects the intellectual property of unretained experts, while providing a means for obtaining it if necessary, and the expert is properly compensated. Paragraph (c)(3)(B)(iii) adds additional protection for witnesses subpoenaed for trial. The court may modify or quash the subpoena if it requires travel over 50 miles to attend the trial, unless the other party can demonstrate a substantial need for the information that could not be obtained otherwise without substantial hardship, and that the person subpoenaed will be reasonably compensated.
Paragraph (d)(1) requires those served with the subpoena to produce the documents in the order in which they are kept in the ordinary course of business or label them to correspond to the categories in the demand. This is the same requirement imposed on parties responding to a document request under Rule 34. Paragraph (d)(2) imposes a new obligation to support an objection to production on grounds of privilege by providing a description of the documents or things not produced sufficiently to allow the claim to be contested.
Paragraph (e) provides authority for the court to impose sanctions through the contempt power for failure to comply with a subpoena. The paragraph does have a new sentence that states that it is an adequate excuse for failure to comply with the subpoena that it required a non-party to appear at a deposition, permit inspection or produce materials outside of the geographical limits set by the rule.
Note to 1995 Amendment:
Rule 45(c)(2)(A) is amended to add a provision that a party subpoenaing books, papers and documents from a non-party without a deposition shall provide, upon written request, copies of the documents produced without a deposition to other requesting parties. The party requesting copies of the documents must pay the reasonable costs of reproducing the documents. The purpose of the rule is to reduce the burden of non-parties responding to a subpoena for documents by making the documents available to other parties without the need for additional subpoenas. The sharing of the document production should also reduce the cost to the parties of obtaining the information. The rule only applies to documents produced without a deposition. When documents are produced at a deposition all counsel may review the documents at that time. The production of tangible objects for examination, and the inspection of premises are not affected by this rule.
Rule 45(c)(3)(A)(ii) and 45(c)(3)(B)(iii) are amended to make clear that a non-party general partner of a partnership that is a party, is treated the same as an officer, director or managing agent of a party for purposes of trial subpoenas. Rule 45(c)(3) provides a non-party, subpoenaed to appear at trial more than fifty miles from the place of service, the opportunity to move to quash the subpoena unless a special showing of need is made and reasonable compensation is provided to the witness. These special provisions are not available to parties or officers, directors and managing agents of parties. The amendment extends the exclusion to a general partner of a partnership that is a party. The amendment does not affect limited partners.
Note to 2002 Amendment:
The first 2002 amendment amends Rule 45(b)(1) to permit service of subpoenas by the same method as used to serve a summons and complaint. First, in addition to in hand service of the subpoena, service on an individual could be made by leaving the subpoena at the person’s home or usual place of abode with a person of suitable age and discretion then residing there as provided in Rule 4(d)(1). Second, a subpoena could be served on an individual, a corporation, or a partnership by registered or certified mail, return receipt requested and delivery restricted to the addressee under Rule 4(d)(8). In addition, the person or the person’s attorney may accept service under Rule 4(j).
The second 2002 amendment amends Rule 45(e), to make clear the circumstances when service is effective and may be enforced through the contempt power.
Note to 2011 Amendment:
The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil Procedure concerning electronic discovery are substantially similar to the corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning electronic discovery are intended to provide a practical, efficient and cost-effective method to assure reasonable discovery. Pursuit of electronic discovery must relate to the claims and defenses asserted in the pleadings and should serve as a means for facilitating a just and cost-effective resolution of disputes.