SCRCP 45

(a) Form; Issuance.

(1) Every subpoena shall:

(A) state the name of the court from which it is issued; and

(B) state the title of the action, the name of the court in which it is

pending, and its civil action number; and

(C) command each person to whom it is directed to attend and give

testimony or produce and permit inspection and copying of

designated books, documents or tangible things in the possession,

custody or control of that person, or to permit inspection of premises,

at a time and place therein specified; and

(D) set forth the text of subdivisions (c) and (d) of this rule.

A command to produce evidence or to permit inspection may be joined with a command to appear at

trial or hearing or at deposition, or may be issued separately. A subpoena may specify the form or

forms in which electronically stored information is to be produced.

(2) A subpoena commanding attendance at a trial or hearing shall issue from the

court for the county in which the hearing or trial is to be held. A subpoena for

attendance at a deposition shall issue from the court for the county designated by the

notice of deposition as the county in which the deposition is to be taken. If separate

from a subpoena commanding the attendance of a person, a subpoena for production

or inspection shall issue from the court for the county in which production or

inspection is to be made. Provided, however, that a subpoena to a person who is not a

party or an officer, director or managing agent of a party, commanding attendance at

a deposition or production or inspection shall issue from the court for the county in

which the non-party resides or is employed or regularly transacts business in person.

(3) The clerk shall issue a subpoena, signed but otherwise in blank, to a party

requesting it, who shall complete it before service. An attorney as officer of the court

may also issue and sign a subpoena on behalf of a court in which the attorney is

authorized to practice.

(4) If the subpoena commands the production of documents, electronically stored

information, or tangible things or the inspection of premises before trial, then before

it is served on the person to whom it is directed, a copy of the subpoena must be

served on each party in the manner prescribed by Rule 5(b) at least ten days before

the time specified for compliance.

(b) Service.

(1) A subpoena may be served 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 in

the same manner prescribed for service of a summons and complaint in Rule 4(d) or

(j). If the person's attendance is commanded, then that person shall, upon his arrival in

accordance with the subpoena, be tendered fees for each day's attendance of $25.00

and the mileage allowed by law for official travel of State officers and employees from

his residence to the location commanded in the subpoena. When the subpoena is

issued on behalf of the State of South Carolina or an officer or agency thereof, fees

and mileage need not be tendered.

(2) Subject to the provisions of clause (ii) of subparagraph (c)(3)(A) of this rule, a

subpoena may be served at any place within the State. Provided, however, that a

subpoena to a person who is not a party or an officer, director or managing agent of a

party, commanding attendance at a deposition or production or inspection shall issue

from the court for the county in which the non-party resides or is employed or

regularly transacts business in person and be served in that county.

(3) Proof of service when necessary shall be made by filing with the clerk of the court

by which the subpoena is issued a statement of the date and manner of service and of

the names of the persons served, certified by the person who made the service.

(c) Protection of Persons Subject to Subpoenas.

(1) A party or an attorney responsible for the issuance and service of a subpoena shall

take reasonable steps to avoid imposing undue burden or expense on a person

subject to that subpoena. The court on behalf of which the subpoena was issued shall

enforce this duty and impose upon the party or attorney in breach of this duty an

appropriate sanction, which may include, but is not limited to, lost earnings and a

reasonable attorney's fee.

(2)(A) A person commanded to produce and permit inspection and copying of

designated electronically stored information, books, papers, documents or tangible

things, or inspection of premises need not appear in person at the place of production

or inspection unless commanded to appear for deposition, hearing or trial. A party or

an attorney responsible for the issuance and service of a subpoena for production of

books, papers and documents without a deposition shall provide to another party

copies of documents so produced upon written request. The party requesting copies

shall pay the reasonable costs of reproduction.

(B) Subject to paragraph (d)(2) of this rule, a person commanded to

produce and permit inspection and copying may, within 14 days after

service of the subpoena or before the time specified for compliance if

such time is less than 14 days after service, serve upon the party or

attorney designated in the subpoena written objection to inspection

or copying of any or all of the designated materials or of the

premises—or to producing electronically stored information in the

form or forms requested. If objection is made, the party serving the

subpoena shall not be entitled to inspect and copy the materials or

inspect the premises except pursuant to an order of the court by

which the subpoena was issued. If objection has been made, the party

serving the subpoena may, upon notice to the person commanded to

produce, move at any time in the court that issued the subpoena for

an order to compel the production. Such an order to compel

production shall protect any person who is not a party or an officer of

a party from significant expense resulting from the inspection and

copying commanded.

(3)(A) On timely motion, the court by which a subpoena was issued, or regarding a subpoena

commanding appearance at a deposition, or production or inspection directed to a non-party, the

court in the county where the non-party resides, is employed or regularly transacts business in person,

shall quash or modify the subpoena if it:

(i) fails to allow reasonable time for compliance; or

(ii) requires a person who is not a party nor an officer, director or

managing agent of a party, nor a general partner of a partnership

that is a party, to travel more than 50 miles from the county where

that person resides, is employed or regularly transacts business in

person, except that, subject to the provisions of clause (c)(3)(B)(iii) of

this rule, such a person may in order to attend trial be commanded to

travel from any such place within the state in which the trial is held; or

(iii) requires disclosure of privileged or otherwise protected matter

and no exception or waiver applies; or

(iv) subjects a person to undue burden.

(B) If a subpoena:

(i) requires disclosure of a trade secret or other confidential research,

development, or commercial information, or

(ii) requires disclosure of an unretained expert's opinion or

information not describing specific events or occurrences in dispute

and resulting from the expert's study made not at the request of any

party, or

(iii) requires a person who is not a party nor an officer, director or

managing agent of a party, nor a general partner of a partnership

that is a party, to incur substantial expense to travel from the county

where that person resides, is employed or regularly transacts business

in person, the court may, to protect a person subject to or affected by

the subpoena, quash or modify the subpoena or, if the party in whose

behalf the subpoena is issued shows a substantial need for the

testimony or material that cannot be otherwise met without undue

hardship and assures that the person to whom the subpoena is

addressed will be reasonably compensated, the court may order

appearance or production only upon specified conditions.

(d) Duties in Responding to Subpoena.

(1)(A)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 them to

correspond with the categories in the demand.

(B) If a subpoena does not specify the form or forms for producing

electronically stored information, a person responding to a subpoena

must produce the information in a form or forms in which it is

ordinarily maintained or in a reasonably usable form or forms.

(C) A person responding to a subpoena need not produce the same

electronically stored information in more than one form.

(D) A person responding to a subpoena 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 to quash, the person from

whom discovery is sought must show that the information sought 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)(6)(B). The court may specify conditions

for the discovery.

(2)(A) When information subject to a subpoena is withheld on a claim that it is

privileged or subject to protection as trial preparation materials, the claim shall be

made expressly and shall be supported by a description of the nature of the

documents, communications, or things not produced that is sufficient to enable the

demanding party to contest the claim.

(B) 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 and may not use or disclose the

information until the claim is resolved. A receiving party may

promptly present the information to the court under seal for a

determination of the claim. If the receiving party disclosed the

information before being notified, the receiving party must take

reasonable steps to retrieve the information. The person who

produced the information must preserve the information until the

claim is resolved.

(e) Contempt. Failure by any person without adequate excuse to obey a subpoena served upon that

person may be deemed a contempt of the court from which the subpoena issued. An adequate cause

for failure to obey exists when a subpoena purports to require a non-party to attend a deposition,

permit an inspection, or produce at a place not within the limits provided by clause (ii) of

subparagraph (c)(3)(A); or if served without an adequate time to respond; or if service is made upon an

individual under Rule 4(d)(1) and the individual did not receive or acknowledge the subpoena.

Note:

This Rule 45 is substantially the same as the Federal Rule, modified to the limits of

State court jurisdiction. Rule 45(b) is modified to conform to new Circuit Court Rule

106. The Federal Rule has been little changed for 40 years and is familiar to South

Carolina practitioners. It offers several simplifications of present State practice: (1) The

Clerk of Court issues the subpoena "duces tecum" under Rule 45(b), as well as the

subpoena to compel attendance of witnesses. (A "standard form" is provided for all

clerks, which may be issued to counsel in advance for use as needed.). (2) Service runs

statewide and is not confined to one county. (3) One form replaces the old "subpoena

writ" with "tickets" attached for each witness. Rule 45(g) is added to provide

reasonable per diem and mileage for witnesses. The "Uniform Act to Secure

Attendance of Witness from Without the State in Criminal Proceedings," Code § 19-7-

50, et seq., is not affected.

Note to 1993 Amendment:

Rule 45 is amended to conform to federal Rule 45, as amended in December 1991.

The major purposes of that amendment, which are adopted here, are to simplify the

procedure for issuing a subpoena and to clarify and enlarge the protection of non-parties who are compelled to assist the court in the proceedings, as well as to

facilitate access to materials without the necessity of a deposition. The federal rule

made other changes in the methods of issuing subpoenas in districts other than the

one in which the action is pending which are not relevant to state practice.

Much of the practice remains the same including who may serve the subpoena, the

right to object to production in writing, and to require the issuing party to obtain a

court order before inspecting the documents. The major changes are: (1) the attorney

signs and issues the subpoena on behalf of the court; (2) documents, materials or an

inspection can be obtained from a non-party without obtaining a deposition; and (3)

the non-party's rights are expanded and clarified. In this context, paragraph (a)(2)

provides that a subpoena for trial is issued by the court where the action is pending

and under paragraph (b)(2) may be served throughout the state. The subpoenaed

person may move under (c)(3)(A) to quash or modify the subpoena in the issuing

court, which is the court where the action is pending, and may obtain relief if the

subpoena requires travel of more than 50 miles from where the non-party resides, is

employed or regularly transacts business.

The rights of a non-party subpoenaed for a deposition are enlarged and clarified.

Under paragraph (a)(2) the subpoena for a non-party deposition, production or

inspection is issued by the court in the county where the person resides, is employed

or regularly transacts business, and served there. Under paragraph (c)(3)(A) the non-party can object to the subpoena in his home county, if different from the place where

the action is pending. Finally, paragraph (e) makes clear that a subpoena to a non-party for a deposition, inspection or production, requiring travel beyond 50 miles of

the county where the individual resides, is employed or regularly transacts business,

provides an adequate excuse for failure to respond, and avoids a sanction for

contempt.

The following material discusses each provision of the new rule. Paragraph (a)(1)

defines the form of the subpoena. It no longer requires that the subpoena bear the

seal of the court. Subparagraph (D) now requires that the subpoena contain language

of paragraphs (c) Protection of Persons Subject to Subpoenas, and (d) Duties in

Responding to Subpoena, to alert the person subpoenaed about the rights and

obligations under Rule 45.

Paragraphs (a)(1) and (c)(2)(A) permit a subpoena for the production of documents or

inspection without requiring a deposition. This adopts a common practice which was

not authorized by the prior rule which required the deposition of a non-party to

obtain production or inspection from a non-party. The last sentence of paragraph

(b)(1) requires ten (10) days written notice to other parties if production is requested

without a deposition.

Paragraph (a)(2) states that the subpoena for trial or hearing is issued by the court for

the county where the action is pending. A subpoena for a deposition is issued by the

county where the deposition is to take place. A subpoena for the deposition of a non-party is issued where the non-party resides, is employed or regularly transacts

business in person. Specifying the court that issues the subpoena is important

because motions to quash or enforce a non-party subpoena are brought in the issuing

court which might be different from the court where the action is pending.

Paragraph (a)(3) provides that the clerk is to issue the subpoena in blank if the

subpoena is requested by an unrepresented party, but the attorney is also authorized

to sign the subpoena on behalf of any court in which he is licensed to practice. There

is no requirement that the subpoena bear the seal of the court. The attorney signs and

issues it as an officer of the court.

Paragraph (b)(1) defines who can serve a subpoena, and specifies that it is by delivery

to the person subpoenaed along with tendering the witness fee and mileage. This

clarifies the procedure for service.

Paragraph (b)(2) provides that subpoenas may be served throughout the state subject

to two exceptions. First, (c)(2)(A)(ii) requires the appropriate court to quash or modify

a subpoena on several grounds. Second, a non-party subpoena can only be issued

and served in the county where the non-party resides, is employed or regularly

transacts business in person. Paragraph (b)(3) describes how proof of service of the

subpoena is to be made.

Paragraph (c)(1) states the duty of the attorney to avoid undue burden on the

subpoenaed person and authorizes the issuing court to enforce this duty by imposing

sanctions including, but not limited to, lost earnings and reasonable attorney's fees.

Paragraph (c)(2)(A) permits a subpoena for the production of documents without the

necessity of also scheduling a deposition. Ten (10) days written notice to other parties

is required under the last sentence of (b)(1) if there is no deposition. Rule 30 requires

similar notice of all depositions.

Paragraph (c)(2)(B) is taken from former Rule 45(d) which authorized a person

subpoenaed to object in writing to the production, and required the person seeking

the information to obtain a court order before inspecting the documents. This order is

obtained from the court that issued the subpoena, and, in the case of a non-party,

would be the court in the county where the non-party resides, is employed or

regularly transacts business in person, if different from the court where the action is

pending.

Paragraph (c)(3)(A) states that the court shall quash or modify the subpoena if there is

no reasonable time to comply, requires excessive travel, calls for privileged material or

creates an undue burden. Paragraph (c)(3)(B)(i) authorizes the court to quash or

modify the subpoena if it requires disclosure of trade secrets. Sub-paragraph (ii)

protects the intellectual property of unretained experts, while providing a means for

obtaining it if necessary, and the expert is properly compensated. Paragraph

(c)(3)(B)(iii) adds additional protection for witnesses subpoenaed for trial. The court

may modify or quash the subpoena if it requires travel over 50 miles to attend the

trial, unless the other party can demonstrate a substantial need for the information

that could not be obtained otherwise without substantial hardship, and that the

person subpoenaed will be reasonably compensated.

Paragraph (d)(1) requires those served with the subpoena to produce the documents

in the order in which they are kept in the ordinary course of business or label them to

correspond to the categories in the demand. This is the same requirement imposed

on parties responding to a document request under Rule 34. Paragraph (d)(2) imposes

a new obligation to support an objection to production on grounds of privilege by

providing a description of the documents or things not produced sufficiently to allow

the claim to be contested.

Paragraph (e) provides authority for the court to impose sanctions through the

contempt power for failure to comply with a subpoena. The paragraph does have a

new sentence that states that it is an adequate excuse for failure to comply with the

subpoena that it required a non-party to appear at a deposition, permit inspection or

produce materials outside of the geographical limits set by the rule.

Note to 1995 Amendment:

Rule 45(c)(2)(A) is amended to add a provision that a party subpoenaing books,

papers and documents from a non-party without a deposition shall provide, upon

written request, copies of the documents produced without a deposition to other

requesting parties. The party requesting copies of the documents must pay the

reasonable costs of reproducing the documents. The purpose of the rule is to reduce

the burden of non-parties responding to a subpoena for documents by making the

documents available to other parties without the need for additional subpoenas. The

sharing of the document production should also reduce the cost to the parties of

obtaining the information. The rule only applies to documents produced without a

deposition. When documents are produced at a deposition all counsel may review the

documents at that time. The production of tangible objects for examination, and the

inspection of premises are not affected by this rule.

Rule 45(c)(3)(A)(ii) and 45(c)(3)(B)(iii) are amended to make clear that a non-party

general partner of a partnership that is a party, is treated the same as an officer,

director or managing agent of a party for purposes of trial subpoenas. Rule 45(c)(3)

provides a non-party, subpoenaed to appear at trial more than fifty miles from the

place of service, the opportunity to move to quash the subpoena unless a special

showing of need is made and reasonable compensation is provided to the witness.

These special provisions are not available to parties or officers, directors and

managing agents of parties. The amendment extends the exclusion to a general

partner of a partnership that is a party. The amendment does not affect limited

partners.

Note to 2002 Amendment:

The first 2002 amendment amends Rule 45(b)(1) to permit service of subpoenas by

the same method as used to serve a summons and complaint. First, in addition to in

hand service of the subpoena, service on an individual could be made by leaving the

subpoena at the person's home or usual place of abode with a person of suitable age

and discretion then residing there as provided in Rule 4(d)(1). Second, a subpoena

could be served on an individual, a corporation, or a partnership by registered or

certified mail, return receipt requested and delivery restricted to the addressee under

Rule 4(d)(8). In addition, the person or the person's attorney may accept service under

Rule 4(j).

The second 2002 amendment amends Rule 45(e), to make clear the circumstances

when service is effective and may be enforced through the contempt power.

Note to 2011 Amendment:

The amendments to Rules 16, 26, 33, 34, 37 and 45 of the South Carolina Rules of Civil

Procedure concerning electronic discovery are substantially similar to the

corresponding provisions in the Federal Rules of Civil Procedure. The rules concerning

electronic discovery are intended to provide a practical, efficient and cost-effective

method to assure reasonable discovery. Pursuit of electronic discovery must relate to

the claims and defenses asserted in the pleadings and should serve as a means for

facilitating a just and cost-effective resolution of disputes.

Note to 2015 Amendment:

Paragraph (b)(1) is amended to provide that fees for attendance and reimbursement

for mileage must be tendered when the person arrives in accordance with the

subpoena, rather than at the time of the service of a subpoena. The amendment also

clarifies that a person commanded to appear is entitled to a fee for each day's

attendance, and mileage is properly measured from the person's residence to the

location commanded in the subpoena. Parties issuing subpoenas commanding the

attendance of a person should take care to promptly notify the person if his or her

attendance is no longer required because a trial, hearing, or deposition has been

cancelled or rescheduled.

Note to 2020 Amendment:

The amendment incorporates a version of the 2013 amendment to the Federal Rule

by transferring the last sentence in paragraph (b)(1) to new paragraph (a)(4) and

amending the sentence to require the issuing party serve a copy of the subpoena on

each party before it is served on the person to whom it is directed. The language has

also been modified, consistent with the corresponding Federal Rule and prior

amendments to the South Carolina Rules of Civil Procedure involving electronic

discovery, to include a reference to electronically stored information.

Paragraph (e) has been amended to delete the specific reference to former paragraph

(b)(1)—now paragraph (a)(4)—with regard to an adequate time to respond. This

provision controls the time to serve a subpoena on each party, and not the time to

serve the subpoena on the person to whom the subpoena is directed.

Last amended by Order dated April 29, 2020.