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I've Been Served with a Deposition Subpoeana. Now What?

A subpoena, from the Latin meaning “under penalty,” is a writ issued under court authority commanding an individual to appear at a designated time and place to offer testimony about a certain matter. Ignoring a subpoena invites being found in contempt of court. Therefore, understanding the process and addressing what to do if you are served with a deposition subpoena is crucial.

Deposition subpoenas are governed by Rule 45 of the Massachusetts Rules of Civil Procedure (“MRCP”), which was overhauled in 2015. The rule closely follows, but doesn’t mirror, its federal counterpart. The principal reason for revising the rule was to enable the Bay State bar to serve documents-only subpoenas on non-parties.[1]

A party requests a subpoena from a clerk of court, Notary Public or justice of the peace. That person issues the signed, but otherwise blank document, which identifies the title of the action along with the court name and docket number. The individual targeted by the subpoena is ordered at a specific time and location in order: to attend and give testimony; to produce designated documents, electronically stored information or tangible things in that individual’s possession, custody or control; or to permit an inspection of premises.[2]

A deposition subpoena may be served on the named individual by a deputy sheriff, constable, or anyone age 18 or older, except a party to the action. Service is accomplished either by:

  • hand-delivering a copy to the person;

  • exhibiting the subpoena and reading it to the individual; or

  • leaving a copy of the subpoena at the person’s place of abode.[3]

If the subpoena requires the named individual to appear in person, fees covering one day’s attendance and for mileage allowed by law must be included. A non-party not required to appear may not receive a fee, nor are a fee and mileage reimbursement required when the subpoena is issued on behalf of the Commonwealth, the United States or an officer or agency of either.

Absent a court order, a Massachusetts resident does not have to attend a deposition or produce documents in response to a subpoena if he or she lives or works more than 50 airline miles away from the site of the deposition, whichever of the two locations is closer to the place to which he or she is subpoenaed.[4]

The subpoena recipient may seek to quash or modify it if it is “unreasonable and oppressive”. Denial may also be conditioned on the issuer advancing the reasonable cost of producing the documents, electronically stored information, or tangible things.[5] This is accomplished by a motion filed promptly or before the compliance deadline cited in the writ.

The amendments to Rule 45, which took effect April 1, 2015, have simplified the previous practice of serving a notice of deposition and a subpoena duces tecum, which set forth a description of the books, papers and tangible evidence the deponent had to bring with him or her to the deposition. Under the revised rule, a documents-only subpoena may be served, and the recipient does not have to appear personally at the place of production or inspection. Sending the requested documentation to the issuing attorney constitutes compliance.

A non-party has 10 days from the date of service of the subpoena to object to it and must serve that objection on all parties. The issuing party then must justify that the requested material is needed by filing a motion to compel their production. If a deponent appears personally or through his or her attorney and the party noticing the deposition does not, the court may order payment of reasonable expenses and attorneys’ fees to the subpoena recipient. A person withholding subpoenaed information based on a claim that the material either is privileged or subject to protection as trial preparation material must affirmatively assert such claim and provide a basis for all parties to assess its validity.[6]

Before serving a documents-only deposition subpoena, the party seeking the information must serve a copy of the subpoena on all parties, unlike FRCP 45, under which a subpoena and notice of the deposition both must be served on all parties. The amended Massachusetts rule also requires the issuing party to serve copies of any objection to the subpoena on all parties, as well as notice when production is made or provide an actual copy of the produced documents, none of which is mandated under the federal version.[7]

Another 2015 change to the Massachusetts Rule allows the subpoena to “specify the form or forms in which electronically stored information is produced,”[8], which facilitates the compilation and review of documents.

Litigation and personal injury matters are nuanced and complex. If you would like to learn more about any procedural or litigation issues in your case, call us for a free consultation at 617-657-HURT (4878) or fill out our contact form here.


[1]Maycotte, The New Documents Only Subpoena Under Recently Amended Mass. R. Civ. P. 45, 59 Boston Bar J. 3 (Summer 2015).

[2] MRCP 45(a).

[3] MRCP 45(c).

[4] MRCP 45 (d)(2).

[5] MRCP 45(b).

[6] MRCP 45(f)(2).

[7] MRCP 45(d)(1).

[8] MRCP 45(b).

Categories: litigation, discovery

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