State Codes and Statutes

State Codes and Statutes

Statutes > North-carolina > Chapter_1A > GS_1A-1__Rule_45

Rule 45. Subpoena.

(a)        Form; Issuance. –

(1)        Every subpoena shallstate all of the following:

a.         The title of theaction, the name of the court in which the action is pending, the number of thecivil action, and the name of the party at whose instance the witness issummoned.

b.         A command to eachperson to whom it is directed to attend and give testimony or to produce andpermit inspection and copying of designated records, books, papers, documents,or tangible things in the possession, custody, or control of that persontherein specified.

c.         The protections ofpersons subject to subpoenas under subsection (c) of this rule.

d.         The requirements forresponses to subpoenas under subsection (d) of this rule.

(2)        A command to produceevidence may be joined with a command to appear at trial or hearing or at adeposition, or any subpoena may be issued separately.

(3)        A subpoena shallissue from the court in which the action is pending.

(4)        The clerk of courtin which the action is pending shall issue a subpoena, signed but otherwiseblank, to a party requesting it, who shall complete it before service. Anyjudge of the superior court, judge of the district court, magistrate, orattorney, as officer of the court, may also issue and sign a subpoena.

(b)        Service. –

(1)        Manner. – Anysubpoena may be served by the sheriff, by the sheriff's deputy, by a coroner,or 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 by delivering acopy thereof to that person or by registered or certified mail, return receiptrequested. Service of a subpoena for the attendance of a witness only may alsobe made by telephone communication with the person named therein only by asheriff, the sheriff's designee who is not less than 18 years of age and is nota party, or a coroner.

(2)        Service of copy. – Acopy of the subpoena served under subdivision (1) of this subsection shall alsobe served upon each party in the manner prescribed by Rule 5(b). Thissubdivision does not apply to subpoenas issued under G.S. 15A‑801 or G.S.15A‑802.

(c)        Protection ofPersons Subject to Subpoena. –

(1)        Avoid undue burdenor expense. – A party or an attorney responsible for the issuance and serviceof a subpoena shall take reasonable steps to avoid imposing an undue burden orexpense on a person subject to the subpoena. The court shall enforce thissubdivision and impose upon the party or attorney in violation of thisrequirement an appropriate sanction that may include compensating the personunduly burdened for lost earnings and for reasonable attorney's fees.

(2)        For production ofpublic records or hospital medical records. – Where the subpoena commands anycustodian of public records or any custodian of hospital medical records, asdefined in G.S. 8‑44.1, to appear for the sole purpose of producingcertain records in the custodian's custody, the custodian subpoenaed may, inlieu of personal appearance, tender to the court in which the action is pendingby registered or certified mail or by personal delivery, on or before the timespecified in the subpoena, certified copies of the records requested togetherwith a copy of the subpoena and an affidavit by the custodian testifying thatthe copies are true and correct copies and that the records were made and keptin the regular course of business, or if no such records are in the custodian'scustody, an affidavit to that effect. When the copies of records are personallydelivered under this subdivision, a receipt shall be obtained from the personreceiving the records. Any original or certified copy of records or anaffidavit delivered according to the provisions of this subdivision, unlessotherwise objectionable, shall be admissible in any action or proceedingwithout further certification or authentication. Copies of hospital medicalrecords tendered under this subdivision shall not be open to inspection orcopied by any person, except to the parties to the case or proceedings andtheir attorneys in depositions, until ordered published by the judge at thetime of the hearing or trial. Nothing contained herein shall be construed towaive the physician‑patient privilege or to require any privilegedcommunication under law to be disclosed.

(3)        Written objection tosubpoenas. – Subject to subsection (d) of this rule, a person commanded toappear at a deposition or to produce and permit the inspection and copying ofrecords may, within 10 days after service of the subpoena or before the timespecified for compliance if the time is less than 10 days after service, serveupon the party or the attorney designated in the subpoena written objection tothe subpoena, setting forth the specific grounds for the objection. The writtenobjection shall comply with the requirements of Rule 11. Each of the followinggrounds may be sufficient for objecting to a subpoena:

a.         The subpoena failsto allow reasonable time for compliance.

b.         The subpoenarequires disclosure of privileged or other protected matter and no exception orwaiver applies to the privilege or protection.

c.         The subpoenasubjects a person to an undue burden.

d.         The subpoena isotherwise unreasonable or oppressive.

e.         The subpoena isprocedurally defective.

(4)        Order of courtrequired to override objection. – If objection is made under subdivision (3) ofthis subsection, the party serving the subpoena shall not be entitled to compelthe subpoenaed person's appearance at a deposition or to inspect and copymaterials to which an objection has been made except pursuant to an order ofthe court. If objection is made, the party serving the subpoena may, uponnotice to the subpoenaed person, move at any time for an order to compel thesubpoenaed person's appearance at the deposition or the production of thematerials designated in the subpoena. The motion shall be filed in the court inthe county in which the deposition or production of materials is to occur.

(5)        Motion to quash ormodify subpoena. – A person commanded to appear at a trial, hearing,deposition, or to produce and permit the inspection and copying of records,books, papers, documents, or other tangible things, within 10 days afterservice of the subpoena or before the time specified for compliance if the timeis less than 10 days after service, may file a motion to quash or modify the subpoena.The court shall quash or modify the subpoena if the subpoenaed persondemonstrates the existence of any of the reasons set forth in subdivision (3)of this subsection. The motion shall be filed in the court in the county inwhich the trial, hearing, deposition, or production of materials is to occur.

(6)        Order to compel;expenses to comply with subpoena. – When a court enters an order compelling adeposition or the production of records, books, papers, documents, or othertangible things, the order shall protect any person who is not a party or anagent of a party from significant expense resulting from complying with thesubpoena. The court may order that the person to whom the subpoena is addressedwill be reasonably compensated for the cost of producing the records, books,papers, documents, or tangible things specified in the subpoena.

(7)        Trade secrets;confidential information. – When a subpoena requires disclosure of a tradesecret or other confidential research, development, or commercial information,a court may, to protect a person subject to or affected by the subpoena, quashor modify the subpoena, or when the party on whose behalf the subpoena isissued shows a substantial need for the testimony or material that cannototherwise be met without undue hardship, the court may order a person to makean appearance or produce the materials only on specified conditions stated inthe order.

(8)        Order to quash;expenses. – When a court enters an order quashing or modifying the subpoena,the court may order the party on whose behalf the subpoena is issued to pay allor part of the subpoenaed person's reasonable expenses including attorney'sfees.

(d)        Duties inResponding to Subpoenas. –

(1)        Form of response. – Aperson responding to a subpoena to produce documents shall produce them as theyare kept in the usual course of business or shall organize and label thedocuments to correspond with the categories in the request.

(2)        Specificity ofobjection. – When information subject to a subpoena is withheld on theobjection that it is subject to protection as trial preparation materials, orthat it is otherwise privileged, the objection shall be made with specificityand shall be supported by a description of the nature of the communications,records, books, papers, documents, or other tangible things not produced,sufficient for the requesting party to contest the objection.

(d1)      Opportunity forInspection of Subpoenaed Material. – A party or attorney responsible for theissuance and service of a subpoena shall, within five business days after thereceipt of material produced in compliance with the subpoena, serve all otherparties with notice of receipt of the material produced in compliance with thesubpoena and, upon request, shall provide all other parties a reasonableopportunity to copy and inspect such material at the expense of the inspectingparty.

(e)        Contempt; Expensesto Force Compliance With Subpoena. –

(1)        Failure by anyperson without adequate excuse to obey a subpoena served upon the person may bedeemed a contempt of court. Failure by any party without adequate cause to obeya subpoena served upon the party shall also subject the party to the sanctionsprovided in Rule 37(d).

(2)        The court may awardcosts and attorney's fees to the party who issued a subpoena if the courtdetermines that a person objected to the subpoena or filed a motion to quash ormodify the subpoena, and the objection or motion was unreasonable or was madefor improper purposes such as unnecessary delay. (1967, c. 954, s. 1; 1969, c.886, s. 1; 1971, c. 159; 1975, c. 762, s. 3; 1983, c. 665, s. 1; c. 722; 1989,c. 262, s. 1; 2003‑276, s. 1; 2007‑514, s. 1.)