The New “Documents Only” Subpoena Under Recently Amended Mass. R. Civ. P. 45

by Carlos A. Maycotte

Heads Up

Earlier this year, the Supreme Judicial Court amended Rule 45 of the Massachusetts Rules of Civil Procedure, which concerns subpoenas. The main purpose of the amendments is to give Massachusetts practitioners the ability to issue “documents only” subpoenas to non-parties. Now, attorneys need no longer notice depositions of non-parties when the only goal is to obtain production of documents.

The amendments were effective as of April 1, 2015. Before that date, attorneys in Massachusetts followed a convoluted procedure: a notice of deposition and a subpoena duces tecum were served on a non-party, commanding that non-party to appear at a Keeper of the Records deposition with the specified documents. The non-party would instead send the documents outlined in the subpoena duces tecum (with a sworn certification) to the issuing attorney, who would then waive the non-party’s appearance at the deposition. The issuing attorney would then have the documents and the non-party would never appear at a deposition.

To streamline the process, the Supreme Judicial Court amended Mass. R. Civ. P. 45 to track the language of and the procedure described in the Federal Rules of Civil Procedure. The amendment eliminates the superfluous steps described in the previous paragraph by creating a new class of subpoenas. Now, the attorney may serve a “documents only” subpoena, and the person receiving it “need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.” The subpoenaed party can simply send the documents to the issuing attorney.

Where the previous incarnation of Mass. R. Civ. P. 45(a) provided generally that a subpoena shall “command each person to whom it is directed to attend and give testimony at a time and place therein specified,” the amended rule provides greater detail, stating that a subpoena shall “command each person to whom it is directed to do the following at a specified time and place: to attend and give 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.” By listing the several purposes for which a subpoena may be issued, the amendment has created new categories of subpoenas that can be targeted for a more economical civil practice.

The new procedure for issuing “documents only” subpoenas in the amended Mass. R. Civ. P. 45(b) further provides that commands to produce documents or electronically stored information may be set out in subpoenas separate from those that command attendance, and that the subpoena “may specify the form or forms in which electronically stored information is produced.” Practitioners will be able to use this provision to require that the document production be made in a specified format, so that they are able to compile and review documents more effectively.

The amended rule also provides certain protections for non-parties. The reporter’s notes recognize that the person receiving a subpoena may have “no stake in the case” and may not have the assistance of counsel. Thus, a party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” A non-party on whom a subpoena is issued has 10 days from the date of service to object to the subpoena and must serve the objection on all parties. After an objection has been made, the burden shifts to the issuing party, who must then justify the need for the documents via a motion to compel. In practice, Massachusetts courts have generally been protective of non-parties in the discovery context, and these protections will likely be reinforced by the amended rule.

At the same time, the amended Mass R. Civ. P. 45(c) specifies that the requirement to tender fees to a person served with a subpoena does not apply to cases where the person is not commanded to appear – meaning that while a non-party may have an easier time complying with a subpoena, he or she may not receive a fee, however nominal, for doing so.

Although the amendments to Mass R. Civ. P. 45 align the Massachusetts rule more closely to the federal rule, important differences remain. Mass R. Civ. P. 45(d)(1) provides that prior to the service of a “documents only” subpoena on a third person, a copy of the subpoena must be served on all parties to the case. This differs from the federal rule, which requires that both notice and a copy of the subpoena be served on all parties to the case. The Massachusetts rule eliminates an unnecessary step, allowing a copy of the subpoena to operate as adequate notice that a subpoena has been served. Unlike the federal rule, this provision in the Massachusetts rule also tasks the issuing party with serving copies of any objection to the subpoena on all parties. In addition, the issuing party must serve all other parties with either notice that a production was made or an actual copy of the documents produced.

These amendments should help make civil procedure more efficient. By eliminating the need to notice a deposition and issue a subpoena to non-parties from whom only documents are needed, less paperwork will be required from issuing parties. The streamlined procedure will save practitioners time, and clients, money. The amendment to Mass R. Civ. P. 45 should be well received by Massachusetts attorneys.

Carlos A. Maycotte is an associate at Sally & Fitch LLP, where he works primarily in the areas of family law, international arbitration and litigation, and general civil litigation.