Opinion
89-R-99001-SCT
06-14-2023
IN RE: THE RULES OF CIVIL PROCEDURE
EN BANC ORDER
JAMES W. KITCHEN, PRESIDING JUSTICE
This matter is before the en banc Court on the Court's own motion.
On January 23, 2023, the Court granted in part the Supreme Court of Mississippi's Advisory Committee on Rules' Motion to Amend M.R.C.P. 45. En Banc Order, In Re: The Rules of Civil Procedure, No. 89-R-99001-SCT (Miss. Jan. 23, 2023). The Court also ordered that the "form subpoenas-attached as Exhibits B, C, and D-shall be posted on the Mississippi Judicial College's website." Id.
After due consideration, we find as follows. First, Rule 45 of the Mississippi Rules of Civil Procedure should be amended to correct a typographical error-i.e., to strike "and shall" in subsection (a)(1)(C). Second, we clarify that the form subpoenas attached to the Court's January 23, 2023 En Banc Order are the Advisory Committee on Rules' work product and that this Court neither adopts nor approves the form subpoenas.
IT IS THEREFORE ORDERED that Rule 45 of the Mississippi Rules of Civil Procedure is amended as set forth in the attached Exhibit A. The amendment will be effective upon entry of this order.
IT IS FURTHER ORDERED that the form subpoenas attached to this Court's January 23, 2023 En Banc Order are the Advisory Committee on Rules' work product and that this Court neither adopts nor approves the form subpoenas.
IT IS FURTHER ORDERED that a copy of this order shall be posted with the form subpoenas on the Mississippi Judicial College's website.
IT IS FURTHER ORDERED that the Clerk of this Court must spread this order upon the minutes of the Court and send a certified copy to West Publishing Company for publication in the advance sheets of Southern Reporter, Third Series (Mississippi Edition), and in the next edition of the Mississippi Rules of Court.
SO ORDERED.
TO AGREE: RANDOLPH, C.J., KITCHENS AND KING, P.JJ., COLEMAN, MAXWELL, BEAM, CHAMBERLIN AND ISHEE, JJ.
TO DISAGREE WITH SEPARATE WRITTEN STATEMENT: GRIFFIS, J.
EXHIBIT A
RULE 45. SUBPOENA
(a) Form; Issuance.
(1) Every subpoena shall:
(A) state the name of the court from which it was issued;
(B) state the title of the action;
(C) and shall command each person to whom it is directed to attend and give testimony, or to produce and permit inspection and copying of designated books, documents, electronically stored information, 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;
(D) set forth the text of subdivisions (d) and (e) of this rule; and
(E) include a certificate of service.
A command to produce 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.
GRIFFIS, JUSTICE, OBJECTING TO THE ORDER WITH SEPARATE WRITTEN STATEMENT:
¶ l. I write separately to: (a) clarify that this En Banc Order in fact corrects this Court's previous Order dated January 23,2023, and the Corrected En Banc Order dated January 30, 2023; (b) concur with the Court's decision to correct the typographical error; and (c) disagree with and dissent from certain language in this En Banc Order that was in neither the January 23 Order nor the January 30 corrected order.
¶ 2. This Order indicates that it is to correct the January 23, 2023 Order. Actually, the January 23,2023 En Banc Order was amended by a Corrected En Banc Order, dated January 30, 2023. This Order actually corrects both the January 23 and the January 30 orders.
¶ 3. This Order proposes that "Rule 45 of the Mississippi Rules of Civil Procedure should be amended to correct a typographical error, i.e. to strike 'and shall' in subsection 45(a)(1)(C)." I concur.
¶ 4. I disagree with and dissent from, however, the Court's using this corrected order to add additional language that was in neither the January 23 nor 30 orders. I disagree with a portion of the paragraph that states:
IT IS FURTHER ORDERED that the form subpoenas attached to the January 23, 2023 En Banc Order are the Advisory Committee on the Rules' work product and that this Court neither adopts nor approves the form subpoenas.
¶ 5. I agree that the forms are the work product of the Advisory Committee on the Civil Rules. I have no objection to including the forms on the Mississippi Judicial College's website. I see absolutely no reason, however, to post a form based on Rule 45 of the Mississippi Rules of Civil Procedure only on the Mississippi Judicial College's website and not with all of the other forms for the Mississippi Rules of Civil Procedure. The Mississippi Judicial College website does not include any other forms that are associated with the Mississippi Rules of Civil Procedure.
¶ 6. These Rule 45 subpoena forms are no different than the other forty-four forms that are at present authorized and attached as Appendix A to the Mississippi Rules of Civil Procedure. These forms are authorized by Mississippi Rule of Civil Procedure 84 and are subject to a disclaimer in the Appendix. I see no reason to treat any Rule 45 form differently than a Mississippi Rule of Civil Procedure 4 or 81 form.
MAXWELL AND CHAMBERLIN, JJ., JOIN THIS SEPARATE WRITTEN STATEMENT IN PART.