Rule 45, Federal Rules of Civil Procedure, Subdivisions (c), (d), and (e), as amended on December 1, 2006:
(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, copying, testing, or
sampling 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.
(B) Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit
inspection, copying, testing, or sampling 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 producing any or all
of the designated materials or inspection 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, copy, test, or sample 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 for an order to compel the production, inspection, copying, testing, or sampling.
Such an order to compel shall protect any person who is not a party or an officer of a party from
significant expense resulting from the inspection, copying, testing, or sampling commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify
the subpoena if it
(i) fails to allow reasonable time for compliance;
(ii) requires a person who is not a party or an officer of a party to travel to a place
more than 100 miles from the place 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;
(iii) requires disclosure of privileged or other 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 or an officer of a party to incur substantial
expense to travel more than 100 miles to attend trial, 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 the person ordinarily maintains it or in a form or forms that are reasonably
usable.
(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)(2)(C). 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 is produced in response to a subpoena that 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, it must take reasonable
steps to retrieve it. The person who produced the information must preserve the information
until the claim is resolved.
(e) CONTEMPT. Failure of 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 nonparty to
attend or produce at a place not within the limits provided by clause (ii) of subparagraph
(c)(3)(A).
