Anderson Educates on Rule 45
I don't have time to write new content today, so for my readers who complain when I don't have a new post every day I am directing you to this practice tip at Anderson's blog. The subject is Miss. R. Civ. P. 45 and who has to file a motion if the person served objects to the subpoena.
Anderson notes:
The burden to go to court is on the party serving the subpoena, not on the served party -- which makes sense. Arguably you don't even have to file the objections (tho I would anyway), just serve them.
This is pretty obvious on the face of the rule, but since three lawyers smarter than I am didn't know this the other day, it seems worth posting.
Years ago in my big firm days I dissected Rule 45, though I can't remember why. It led me to the conclusion that most lawyers have never read it. In addition to the language that Anderson cites, there are provisions that:
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Mississippi residents can only be required to attend a deposition or produce documents in the county where he/she resides, is employed or transacts business [45(b)]; and
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the subpoena must give at least 10 days to produce documents [45(d)(2)].
Lawyers can get very frustrated when they don't know this rule and run into someone who does and doesn't want to produce documents.
Thanks, Philip. N.b. that this only works for a subpoena duces tecum -- I believe a deposition subpoena still has to be quashed.
Of course, in many instances, a deposition w/out documents will result in more "I don't recalls" than an Alberto Gonzales hearing in the Senate.
Don't forget to send the check for the statutory witness fee!
Rule 45 is a mechanism for unnecessary pleadings and unnecessarily burdens the subpoenaed client with legal fees.
It makes much more sense to me for the subpoenaed party to simply object in a letter, produce what they think is required per the Rules and then let the party seeking the documents move to compel if necessary. That way, the subpoenaed party files only one pleading (a response to a motion to compel). If the subpoenaed party moves to quash, then the subpoenaed party files two pleadings that accomplishes the same goal that a letter and a response in opposition would. Plus, the subpoenaed party is still subjected to a motion to compel if production is not satisfactory. Otherwise, moving to quash document production runs up a bill for a non-party.
"It makes much more sense to me for the subpoenaed party to simply object in a letter, produce what they think is required per the Rules and then let the party seeking the documents move to compel if necessary."
That is in fact what Rule 45 says, so I'm not sure it's the mechanism Alex describes.
Ah, what I was saying is that instead of just objecting (which is cheaper and easier), sometimes the subpoenaed party, represented by counsel, will file a motion to quash instead of just objecting.