The South Carolina Bar has proposed amending Rule 45(b)(1) of the South Carolina Rules of Civil Procedure concerning the service of a subpoena seeking the production of documents.  The Bar's proposed amendment is intended to clarify that notice and a copy of the subpoena itself, rather than "prior notice in writing" of the issuance of the subpoena, must be served on each party prior to serving the subpoena on the person to whom it is directed.

After a review of the Bar's submission, the Court is considering modifying the Bar's proposed amendment and including a Note to the amendment for submission to the General Assembly in accordance with Article V, Section 4A of the South Carolina Constitution. The proposed changes are set forth in the attachment.

Persons or entities desiring to submit written comments should submit their comments to the following email address, rule45comments@sccourts.org, on or before November 22, 2019. Comments should be submitted as an attachment to the email as either a Microsoft Word document or an Adobe PDF document.

Columbia, South Carolina
November 6, 2019

(a) Form; Issuance.

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(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.

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(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.  Unless otherwise ordered by the court, prior notice in writing of any commanded production of documents and things or inspection of premises before trial shall be served on each party in the manner prescribed by Rule 5(b) at least 10 days before the time specified for compliance.

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(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 as provided in Rule 45(b)(1)(a)(4); or if service is made upon an individual under Rule 4(d)(1) and the individual did not receive or acknowledge the subpoena.

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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.