Rule 45 - [Effective 1/1/2025] Subpoena(a)In general.(1)Form and contents.(A)Requirements in general. Every subpoena shall: (i) state the court from which it issued;(ii) state the title of the action, and its civil-action number;(iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person's possession, custody or control or permit the inspection of premises; and(iv) set out the text of Rule 45 (d) and (e).(B)Command to attend a deposition-notice of the recording, method. A subpoena commanding attendance at a deposition shall state the method for recording the testimony.(C)Combining or separating a command to produce or to permit inspection; specifying the form for electronically stored information. A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena. A subpoena may specify the form or forms in which electronically stored information is to be produced.(D)Command to produce; included obligations. A command in a subpoena to produce documents, electronically stored information, or tangible things requires the responding person to permit inspection copying, testing, or sampling of the materials.(2)Issuing court. A subpoena shall issue from the court where the action is pending.(3)Issued by whom. The clerk shall issue a subpoena, signed but otherwise in blank, to a party requesting it. That party shall complete it before service. An attorney as officer of the court may also issue and sign a subpoena. if the attorney is authorized to practice in the issuing court.(4)Notice to other parties before service. 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 notice and a copy of the subpoena shall be served on each party.(b)Service.(1)By whom and how; tendering fees. 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 provided for service of process under Rule 4(d)(1)(A) and by tendering to that person if demanded the fees for one day's attendance and the mileage allowed by law. When the subpoena is issued on behalf of the State or an officer or agency thereof, fees and mileage need not be tendered. Prior notice 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).(2)Service in the United States. A subpoena may be served at any place within the State of West Virginia.(3)Proof of service. Proving service, when necessary, requires filing with the issuing court a statement showing the date and manner of service and the names of the persons served. The statement shall be certified by the server.(c)Place of compliance. A deponent may be required to attend an examination only in the county in which the deponent resides or is employed or transacts business in person, or at such other convenient place as is fixed by an order of court.(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 shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that the subpoena. The court on behalf of which the subpoena was issued may 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 fees.(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 and documents, electronically stored information, 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 shall 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 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. and the following rules apply:(i) At any time, on notice to the commanded person, the serving party may move the court on behalf of which the subpoena was issued for an order compelling production or inspection.(ii) These acts may be required only as directed in the order, and the order shall 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 on behalf of which a the subpoena was issued shall quash or modify the subpoena that: (i) fails to allow a reasonable time to comply;(ii) requires a person to travel for a deposition to a place other than the county in which that person resides or is employed or transacts business in person or at a place fixed by order of the court;(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 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 d 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 in formation. These procedures apply to producing documents or electronically stored information:(A)Documents. A person responding to a subpoena to produce documents shall produce them as they are kept in the ordinary course of business or shall 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 shall 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 shall 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 e material shall: (i) expressly make the claim; and(ii) describe the nature of the withheld documents, electronically stored information, 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 shall promptly return, sequester, or destroy the specified information and any copies it has; shall not use or disclose the information until the claim is resolved; shall 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 circuit where compliance is required for a determination of the claim. The person who produced the information shall preserve the information until the claim is resolved.(f)Contempt. The circuit 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.Amended effective 1/1/2025.