Post Content

Mass. R. Civ. P. 45 has been amended to allow lawyers to subpoena documents from a non-party without noticing a deposition of the record-keeper, effective April 1, 2015.

As amended,

Rule 45(a).

A subpoena may command a person, in addition to giving testimony, “to produce designated documents, electronically stored  information, or tangible things in that person’s possession, custody or control; or to permit inspection of premises” and to do so “at a specified time and place.” The addition of the quoted language formally adopts the concept of a documents only subpoena for Massachusetts civil practice.

A specific reference to electronically stored information has been added, consistent with other changes made to the discovery rules in 2014 regarding discovery of electronically stored information.

Rule 45(b).

As revised, this rule implements the documents only provisions of the new rule. The new title to Rule 45(b) and language that a command to produce documents, etc. may be included in a subpoena to attend a deposition or in a separate subpoena.

The last sentence of the revised rule makes clear that a command to produce documents, etc. does not require the person upon whom it is served to “appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.

Rule 45(c).

Requirement of tendering of fees to the person served with the subpoena applies only if the person’s attendance is commanded
and does not apply if the subpoena commands production only.

Rule 45(d).

A provision has been added to Rule 45(d)(1) that prior to service of a documents only subpoena before trial, a copy of the subpoena must be served on each party.

The party serving the subpoena must also serve on all parties to the case a copy of any objection received to the subpoena as well as a notice of any production made or alternatively, a copy of the production. The language also gives the option to the party who receives the documents to provide copies of the documents to the other parties, as often was the prior practice.

Rule 45(e).

The pre-2015 version of Rule 45(e) dealt with a subpoena requiring attendance at a hearing or trial. The 2015 amendments added
language making this provision applicable as well to a subpoena requiring production of documents, etc.

Rule 45(f).

A sentence has been added to Rule 45(f)(1)(A) to address the question whether copies of documents or originals of documents must be produced in response to a subpoena. The sentence states that in the case of a documents only subpoena, the producing person may produce copies of the documents, unless originals were requested in the command. However, if requested, the  producing party must provide “all parties a fair opportunity to verify the copies by comparison with the originals.”

Tags: , , ,

Recent Posts

New Law Gives Added Protections for Persons with Disabilities posted on Feb 20

Massachusetts Governor Charlie Baker signed a new law on February 13, 2020 which gives more protections to individuals with developmental and intellectual disabilities.  Chapter 19 of the Acts of 2020 establishes a registry for caretakers in Massachusetts who have been found to have caused serious physical   …Continue Reading New Law Gives Added Protections for Persons with Disabilities

Real Estate Recording Fees to be Increased posted on Dec 10

Under Massachusetts General Laws chapter 44B section 8,  real property conveyance documents recorded at the Registry of Deeds are subject to a Community Preservation Act surcharge.  This law was amended by chapter 41 sections 29 and 30 of the Acts of 2019.  Effective December 31,   …Continue Reading Real Estate Recording Fees to be Increased

Portraits in Massachusetts Law: Lucy Stone posted on Nov 13

Portraits in Massachusetts Law: Lucy Stone

Portraits in Massachusetts Law is a regular feature of Massachusetts Law Updates. These pages provide links to biographical information abut people who have been particularly important in legal history in Massachusetts, as our government took shape in the cauldron of the American Revolution and grew and changed throughout   …Continue Reading Portraits in Massachusetts Law: Lucy Stone