Changes to Mass. R. Civ. P. 45

The Supreme Judicial Court recently amended Rule 45 of the Massachusetts Rules of Civil Procedure, effective as of April 1, 2015. The most significant change in the amended Rule 45 is the allowance of “documents only” subpoenas to non-parties. Previously, if only documents were sought from a non-party, Massachusetts practice involved serving a deposition subpoena that agreed to “waive the appearance” of the non-party at the deposition if the documents were produced. Consistent with the federal practice, now Massachusetts practitioners can serve a “documents only” subpoena when only documents are needed. The last line of Rule 45(b) makes clear that “[a] person commanded to produce documents, electronically stored information, or tangible things, or to permit 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.”

Other changes in the amended Rule 45 implement the “documents only” subpoena. For instance, the serving party must serve a copy of the “documents only” subpoena on each party before serving it on the non-party to whom it is directed. Also, the serving party must serve any objection to the production and a notice of production once completed, or provide a copy of the document production to each party.

The “documents only” subpoena still “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Within 10 days after service of the subpoena, the person to whom the subpoena is directed can serve a written objection if the subpoena is, for instance, too broad. Once the objection is made, the serving party must file a motion with the court to compel the production of the requested documents.

Amended Rule 45 is a welcome change. It reflects the common practice of obtaining documents from a non-party without the expense and time associated with a deposition.


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