GENERAL ASSEMBLY OF NORTH CAROLINA
SESSION 2003
SESSION LAW 2003-276
HOUSE BILL 785
AN act TO REWRITE RULE 45 OF THE NORTH CAROLINA RULES OF CIVIL PROCEDURE.
The General Assembly of North Carolina enacts:
SECTION 1. G.S. 1A-1, Rule 45, reads as rewritten:
"Rule 45. Subpoena.
(a) For
attendance of witnesses; issuances; form. - A subpoena for the purpose of
obtaining the testimony of a witness in a pending cause shall, except as
hereinafter provided, be issued at the request of any party by the clerk of
superior court for the county in which the hearing or trial is to be held. A
subpoena shall be directed to the witness, shall state the name of the court
and the title of the action, the name of the party at whose instance the
witness is summoned, and shall command the person to whom it is directed to
attend and give testimony at a time and place therein specified. The clerk
shall issue a subpoena, or a subpoena for the production of documentary
evidence, signed but otherwise in blank, to a party requesting it, who shall
fill it in before service. A subpoena for a witness or witnesses need not be
signed by the clerk, and is sufficient if signed by the party or his attorney.
A subpoena for the production of documentary evidence need not be signed by the
clerk, and is sufficient if signed by the attorney requesting the same.
(b) Issuance by
a judge. - Such subpoena may also be issued by any judge of the superior court,
judge of the district court, or magistrate.
(c) For
production of documentary evidence. - A subpoena may also command the person to
whom it is directed to produce the records, books, papers, documents, or
tangible things designated therein. Where the subpoena commands any custodian
of public records to appear for the sole purpose of producing certain records
in his custody, the custodian subpoenaed may, in lieu of a personal appearance,
tender to the court by registered mail certified copies of the records
requested, together with an affidavit by the custodian as to the authentication
of the record tendered or, if no such records are in his custody, an affidavit
to that effect. Any original or certified copy or affidavit delivered under the
provisions of this rule, unless otherwise objectionable, shall be
admissible in any action or proceeding without further certification or
authentication. Where the subpoena commands any custodian of hospital
medical records (as defined in G.S. 8-44.1) to appear for the sole purpose of
producing certain records in his custody, the custodian subpoenaed may, in
lieu of a personal appearance, tender to the presiding judge or designee
by registered mail or by personal delivery at no cost certified copies of the
records requested, on or before the time specified in the subpoena, together
with a copy of the subpoena and an affidavit by the custodian testifying to the
identity and authenticity of the records, that they are true and correct
copies, and as appropriate, that the records were made and kept in the regular
course of business at or near the time of the acts, conditions, or events
recorded, and that they were made by persons having knowledge of the
information set forth; or if no such records are in his custody, an affidavit
to that effect. When the copies of medical records are personally
delivered, a receipt shall be obtained from the person receiving the records.
Any original or certified copy of medical records, or affidavit, delivered
according to the provisions of this rule shall not be held inadmissible in any action
or proceeding on the grounds that it lacks certification, identification,
or authentication, and it shall be received as evidence if otherwise
admissible. The copies of the medical records so tendered shall not be open to
inspection or copy by any persons, except to the parties to the case or
proceeding and their attorneys in depositions, until ordered published by the
judge at the time of the hearing or trial. Nothing contained herein shall
be construed to waive the physician-patient privilege or to require any
privileged communications under law to be disclosed. The judge, upon motion to
quash or modify made promptly and in any event at or before the time specified
in the subpoena for compliance therewith, may
(1) Quash or
modify the subpoena if it is unreasonable and oppressive and in such case may
order the party in whose behalf the subpoena is issued to pay the person to
whom the subpoena is directed part or all of his reasonable expenses including
attorneys' fees or
(2) Grant the motion
unless the party in whose behalf the subpoena is issued advances the reasonable
cost of producing the records, books, papers, documents, or tangible
things.
(d) Subpoena
for taking depositions. -
(1) Proof of
service of a notice to take a deposition as provided in Rules 30(a) and 31(a)
constitutes a sufficient authorization for the issuance by the clerk of the
superior court for the county in which the deposition is to be taken of
subpoenas for the persons named or described therein. The subpoena may command
the person to whom it is directed to produce designated records, books, papers,
documents, or tangible things which constitute or contain evidence relating to
any of the matters within the scope of the examination permitted by Rule 26(b),
but in that event the subpoena will be subject to the provisions of section (c)
of Rule 26 and section (c) of this rule.
The person to whom the subpoena is directed may, within 10 days after the
service thereof or on or before the time specified in the subpoena for
compliance if such time is less than 10 days after service, serve upon the
attorney designated in the subpoena written objection to inspection or copying
of any or all of the designated materials. If objection is made, the party
serving the subpoena shall not be entitled to inspect and copy the materials
except pursuant to an order of the court from which the subpoena was issued.
The party serving the subpoena may, if objection has been made, move upon
notice to the deponent for an order at any time before or during the taking of
the deposition.
(2) Repealed by
Session Laws 1975, c. 762, s. 3, effective January 1, 1976.
(e) Service. -
All subpoenas may be served by the sheriff, by his deputy, by a coroner or by
any other person not less than 18 years of age, who is not a party. Service of
a subpoena for the production of documentary evidence may be made only by the
delivery of a copy to the person named therein or by registered or certified
mail, return receipt requested. Service of a subpoena for the attendance of a
witness may be made by telephone communication with the person named therein
only by an authorized server who shall be a sheriff, his designee who is not
less than 18 years of age and not a party, or coroner, or by delivery of a copy
to the person named therein or by registered or certified mail, return receipt
requested, by any person authorized by this section to serve subpoenas.
Personal service shall be proved by return of a sheriff, his deputy, or a coroner
making service and by return under oath of any other person making service.
Service by telephone communication shall be proved by return of the authorized
process server, noting the method of service. Service by registered or
certified mail shall be proved by filing the return receipt with the return.
(f) Punishment
for failure to obey. - Failure by any person without adequate cause to obey a
subpoena served upon him may be deemed a contempt of the court from which the
subpoena issued. Failure by a party without adequate cause to obey a subpoena
served upon him shall also subject such party to the sanctions provided in Rule
37(d).
(a) Form; Issuance. -
(1) Every subpoena shall state all of the following:
a. The title of the action, the name of the court in which the action is pending, the number of the civil action, and the name of the party at whose instance the witness is summoned.
b. A command to each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated records, books, papers, documents, or tangible things in the possession, custody, or control of that person therein specified.
c. The protections of persons subject to subpoenas under subsection (c) of this rule.
d. The requirements for responses to subpoenas under subsection (d) of this rule.
(2) A command to produce evidence may be joined with a command to appear at trial or hearing or at a deposition, or any subpoena may be issued separately.
(3) A subpoena shall issue from the court in which the action is pending.
(4) The clerk of court in which the action is pending shall issue a subpoena, signed but otherwise blank, to a party requesting it, who shall complete it before service. Any judge of the superior court, judge of the district court, magistrate, or attorney, as officer of the court, may also issue and sign a subpoena.
(b) Service. -
(1) Manner. - Any subpoena 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 a copy thereof to that person or by registered or certified mail, return receipt requested. Service of a subpoena for the attendance of a witness only may also be made by telephone communication with the person named therein only by a sheriff, the sheriff's designee who is not less than 18 years of age and is not a party, or a coroner.
(2) Service of copy. - A copy of the subpoena served under subdivision (1) of this subsection shall also be served upon each party in the manner prescribed by Rule 5(b). This subdivision does not apply to subpoenas issued under G.S. 15A-801 or G.S. 15A-802.
(c) Protection of Persons Subject to Subpoena. -
(1) Avoid undue burden or expense. - A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena. The court shall enforce this subdivision and impose upon the party or attorney in violation of this requirement an appropriate sanction that may include compensating the person unduly burdened for lost earnings and for reasonable attorney's fees.
(2) For production of public records or hospital medical records. - Where the subpoena commands any custodian of public records or any custodian of hospital medical records, as defined in G.S. 8-44.1, to appear for the sole purpose of producing certain records in the custodian's custody, the custodian subpoenaed may, in lieu of personal appearance, tender to the court in which the action is pending by registered or certified mail or by personal delivery, on or before the time specified in the subpoena, certified copies of the records requested together with a copy of the subpoena and an affidavit by the custodian testifying that the copies are true and correct copies and that the records were made and kept in the regular course of business, or if no such records are in the custodian's custody, an affidavit to that effect. When the copies of records are personally delivered under this subdivision, a receipt shall be obtained from the person receiving the records. Any original or certified copy of records or an affidavit delivered according to the provisions of this subdivision, unless otherwise objectionable, shall be admissible in any action or proceeding without further certification or authentication. Copies of hospital medical records tendered under this subdivision shall not be open to inspection or copied by any person, except to the parties to the case or proceedings and their attorneys in depositions, until ordered published by the judge at the time of the hearing or trial. Nothing contained herein shall be construed to waive the physician-patient privilege or to require any privileged communication under law to be disclosed.
(3) Written objection to subpoenas. - Subject to subsection (d) of this rule, a person commanded to appear at a deposition or to produce and permit the inspection and copying of records may, within 10 days after service of the subpoena or before the time specified for compliance if the time is less than 10 days after service, serve upon the party or the attorney designated in the subpoena written objection to the subpoena, setting forth the specific grounds for the objection. The written objection shall comply with the requirements of Rule 11. Each of the following grounds may be sufficient for objecting to a subpoena:
a. The subpoena fails to allow reasonable time for compliance.
b. The subpoena requires disclosure of privileged or other protected matter and no exception or waiver applies to the privilege or protection.
c. The subpoena subjects a person to an undue burden.
d. The subpoena is otherwise unreasonable or oppressive.
e. The subpoena is procedurally defective.
(4) Order of court required to override objection. - If objection is made under subdivision (3) of this subsection, the party serving the subpoena shall not be entitled to compel the subpoenaed person's appearance at a deposition or to inspect and copy materials to which an objection has been made except pursuant to an order of the court. If objection is made, the party serving the subpoena may, upon notice to the subpoenaed person, move at any time for an order to compel the subpoenaed person's appearance at the deposition or the production of the materials designated in the subpoena. The motion shall be filed in the court in the county in which the deposition or production of materials is to occur.
(5) Motion to quash or modify 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 after service of the subpoena or before the time specified for compliance if the time is 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 person demonstrates 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 in which 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 a deposition or the production of records, books, papers, documents, or other tangible things, the order shall protect any person who is not a party or an agent of a party from significant expense resulting from complying with the subpoena. The court may order that the person to whom the subpoena is addressed will 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 trade secret or other confidential research, development, or commercial information, a court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena, or when the party on whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot otherwise be met without undue hardship, the court may order a person to make an appearance or produce the materials only on specified conditions stated in the 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 all or part of the subpoenaed person's reasonable expenses including attorney's fees.
(d) Duties in Responding to Subpoenas. -
(1) Form of response. - 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 the documents to correspond with the categories in the request.
(2) Specificity of objection. - When information subject to a subpoena is withheld on the objection that it is subject to protection as trial preparation materials, or that it is otherwise privileged, the objection shall be made with specificity and 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.
(e) Contempt; Expenses to Force Compliance With Subpoena. -
(1) Failure by any person without adequate excuse to obey a subpoena served upon the person may be deemed a contempt of court. Failure by any party without adequate cause to obey a subpoena served upon the party shall also subject the party to the sanctions provided in Rule 37(d).
(2) The court may award costs and attorney's fees to the party who issued a subpoena if the court determines that a person objected to the subpoena or filed a motion to quash or modify the subpoena, and the objection or motion was unreasonable or was made for improper purposes such as unnecessary delay."
SECTION 2. G.S.15A-801 reads as rewritten:
"§ 15A-801. Subpoena for witness.
The presence of a person as a witness in a criminal
proceeding may be obtained by subpoena, which must be issued and served in the
manner provided in Rule 45 of the Rules of Civil Procedure, G.S. 1A-1.G.S.1A-1,
except that subdivision (2) of subsection (b) of the rule does not apply to
subpoenas issued under this section."
SECTION 3. G.S. 15A-802 reads as rewritten:
"§ 15A-802. Subpoena for the production of documentary evidence.
The production of records, books, papers, documents, or
tangible things in a criminal proceeding may be obtained by subpoena which must
be issued and served in the manner provided in Rule 45 of the Rules of Civil
Procedure, G.S. 1A-1.G.S. 1A-1, except that subdivision (2) of
subsection (b) of the rule does not apply to subpoenas issued under this
section."
SECTION 4. This act becomes effective October 1, 2003, and applies to actions pending or filed on or after that date.
In the General Assembly read three times and ratified this the 18th day of June, 2003.
s/ Beverly E. Perdue
President of the Senate
s/ Richard T. Morgan
Speaker of the House of Representatives
s/ Michael F. Easley
Governor
Approved 1:44 p.m. this 26th day of June, 2003