Tuesday, May 10, 2011

Practice tip

So your client's been served a subpoena duces tecum in a case where he's not a party, and has called you in a tizzy because of the long, absurd list of documents he's supposed to produce. Do you need to file a motion to quash and set an emergency hearing?

Not in Mississippi state courts, according to MRCP 45(d):
The person to whom the subpoena is directed may, within ten days after the service thereof or on or before the time specified in the subpoena for compliance, if such time is less than ten days after service, serve upon the party serving the subpoena written objection to inspection or copying of any or all of the designated materials, or to inspection of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the material 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 at any time upon notice to the person served for an order to compel the production or inspection.
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.


  1. I think that was the federal text as well. It is the federal rule, even though the text has now altered.

    When I was a young associate, I kept getting assigned to draw up removal papers for cases that were not removable. Smart people often don't know every last detail of everything . . .

  2. "When I was a young associate, I kept getting assigned to draw up removal papers for cases that were not removable."

    At some defense firms, that's not because of ignorance of the rules ...

    Not true at mine I think! I did LOTS of removal stuff during an internship for a district judge (so the clerks could do good stuff), and grew to like that whole crazy area of law. But I've had only one interesting removal issue in 8 years, and that case settled.

  3. Good post. Many lawyers don't understand Rule 45. I recently had a lawyer on the other side send out a couple of subpoenas to out of state employees of my client requesting attendance at a depo and production of documents. The other lawyer was visably upset when I told him it wasn't happening.

  4. Need your take on this scenario...resident defendant at time of wreck is served in ms with summons and complaint. During discovery; defendant moves out of state. Plaintiff wants to take defendant's deposition in county in which suit is filed.

    1. Does defendant have to be served with subpoena to attend deposition in ms

    2. Does plaintiff have to take defendants deposition out of statement?

  5. Just to complete the picture, there is no parallel provision in the Federal rules for Criminal Subpoenas (Fed.R.Crim.Pro. 17(c)).

  6. Interesting, Philip! Short answer, I don't know.

    Long answer, I don't think you can defeat jurisdiction once it attaches simply by moving out-of-state, or else everyone would be doing it. Depositions of parties are governed by Rule 30, which requires notice, not service. Does Defendant have counsel?

  7. Yes. I noticed defendant's deposition for July 12 in warren co. Where suit was filed. Opposing counsel says defendant has moved to Florida, so you need to go to fl to take deposition. I have not seen a case that deals with in-state defendant who moves out of state after suit filed and served. I'm prepared to file a motion to compel his attendance in ms.

  8. Let your blog's readers find out what happens. I don't see how a defendant can move to Florida and then place the burden on *plaintiff* to come find him: he created the problem, so he needs to either come to MS or pay for you to go to FL.

    But is that the law? I dunno. I haven't scared any defendants away like you have!