Case: 1:20-cv-04156 Document #: 101-2 Filed: 09/09/21 Page 1 of 3 PageID #:1909
Case: 1:20-cv-04156 Document #: 101-2 Filed: 09/09/21 Page 2 of 3 PageID #:1910
AO 88A (Rev. 2/) Subpoena to Testify at a Deposition in a Civil Action (Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)

(c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a

person to attend a trial, hearing, or deposition only as follows:

(A) within 100 miles of where the person resides, is employed, or

regularly transacts business in person; or

(B) within the state where the person resides, is employed, or regularly

transacts business in person, if the person

(i) is a party or a party’s officer; or

(ii) is commanded to attend a trial and would not incur substantial

expense.

(2) For Other Discovery. A subpoena may command:

(A) production of documents, electronically stored information, or

tangible things at a place within 100 miles of where the person resides, is

employed, or regularly transacts business in person; and

(B) inspection of premises at the premises to be inspected.

(d) Protecting a Person Subject to a Subpoena; Enforcement.

(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney

responsible for issuing and serving a subpoena must take reasonable steps

to avoid imposing undue burden or expense on a person subject to the

subpoena. The court for the district where compliance is required must

enforce this duty and impose an appropriate sanction—which may include

lost earnings and reasonable attorney’s fees—on a party or attorney who

fails to comply.

(2) Command to Produce Materials or Permit Inspection.

(A) Appearance Not Required. A person commanded to produce

documents, electronically stored information, or tangible things, or to

permit the inspection of premises, need not appear in person at the place of

production or inspection unless also commanded to appear for a deposition,

hearing, or trial.

(B) Objections. A person commanded to produce documents or tangible

things or to permit inspection may serve on the party or attorney designated

in the subpoena a written objection to inspecting, copying, testing, or

sampling any or all of the materials or to inspecting the premises—or to

producing electronically stored information in the form or forms requested.

The objection must be served before the earlier of the time specified for

compliance or 14 days after the subpoena is served. If an objection is made,

the following rules apply:

(i) At any time, on notice to the commanded person, the serving party

may move the court for the district where compliance is required for an

order compelling production or inspection.

(ii) These acts may be required only as directed in the order, and the

order must protect a person who is neither a party nor a party’s officer from

significant expense resulting from compliance.

(3) Quashing or Modifying a Subpoena.

(A) When Required. On timely motion, the court for the district where

compliance is required must quash or modify a subpoena that:

(i) fails to allow a reasonable time to comply;

(ii) requires a person to comply beyond the geographical limits

specified in Rule 45(c);

(iii) requires disclosure of privileged or other protected matter, if no

exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) When Permitted. To protect a person subject to or affected by a

subpoena, the court for the district where compliance is required may, on

motion, quash or modify the subpoena if it requires:

(i) disclosing a trade secret or other confidential research, development,

or commercial information; or

(ii) disclosing an unretained expert’s opinion or information that does

not describe specific occurrences in dispute and results from the expert’s

study that was not requested by a party.

(C) Specifying Conditions as an Alternative. In the circumstances

described in Rule 45(d)(3)(B), the court may, instead of quashing or

modifying a subpoena, order appearance or production under specified

conditions if the serving party:

(i) shows a substantial need for the testimony or material that cannot be

otherwise met without undue hardship; and

(ii) ensures that the subpoenaed person will be reasonably compensated.

(e) Duties in Responding to a Subpoena.

(1) Producing Documents or Electronically Stored Information. These

procedures apply to producing documents or electronically stored

information:

(A) Documents. A person responding to a subpoena to produce documents

must produce them as they are kept in the ordinary course of business or

must organize and label them to correspond to the categories in the demand.

(B) Form for Producing Electronically Stored Information Not Specified.

If a subpoena does not specify a form for producing electronically stored

information, the person responding must produce it in a form or forms in

which it is ordinarily maintained or in a reasonably usable form or forms.

(C) Electronically Stored Information Produced in Only One Form. The

person responding need not produce the same electronically stored

information in more than one form.

(D) Inaccessible Electronically Stored Information. The person

responding 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 for a protective

order, the person responding must show that the information 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) Claiming Privilege or Protection.

(A) Information Withheld. A person withholding subpoenaed information

under a claim that it is privileged or subject to protection as trial-preparation

material must:

(i) expressly make the claim; and

(ii) describe the nature of the withheld documents, communications, or

tangible things in a manner that, without revealing information itself

privileged or protected, will enable the parties to assess the claim.

(B) Information Produced. If information produced in response to a

subpoena 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; must not use or disclose the information

until the claim is resolved; must take reasonable steps to retrieve the

information if the party disclosed it before being notified; and may promptly

present the information under seal to the court for the district where

compliance is required for a determination of the claim. The person who

produced the information must preserve the information until the claim is

resolved.

(g) Contempt.

The court for the district where compliance is required—and also, after a

motion is transferred, the issuing court—may hold in contempt a person

who, having been served, fails without adequate excuse to obey the

subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

Case: 1:20-cv-04156 Document #: 101-2 Filed: 09/09/21 Page 3 of 3 PageID #:1911