Mississippi Supreme Court Adopts Official Civil Subpoena Forms (Forms 6–8) and Requires Conspicuous Ten‑Day Production Hold Under Rule 45

Introduction

In a rulemaking order titled “In re: The Rules of Civil Procedure,” the Supreme Court of Mississippi amended the Mississippi Rules of Civil Procedure to adopt new, official civil subpoena forms and to clarify and operationalize several core protections and duties embedded in Rule 45. The order, effective upon entry on October 2, 2025, standardizes three subpoena forms—covering production/inspection, deposition, and hearing/trial testimony—and ensures the forms themselves conspicuously reflect a ten-day waiting period before production or inspection occurs, unless otherwise ordered by the court. The Court also addresses publication and dissemination of the forms and records a non-unanimous vote.

Key issues include:

• Adoption of official, rule-embedded subpoena forms for civil actions (Exhibits A–C, with Exhibit B designated as Form 7 and Exhibit C as Form 8).
• Reinforcement—on the face of the forms—of Rule 45’s minimum ten-day period before production/inspection and the rights and duties under Rule 45(d) and (e).
• Explicit reminder that subpoenas must first be served on all parties pursuant to M.R.C.P. 5 before service on the recipient (Rule 45(a)(5)).
• Administrative directives concerning publication and a change in the Mississippi Judicial College’s posting obligations.

The order is signed “for the Court” by Justice T. Kenneth Griffis, Jr. The justices concurring are King, P.J., Maxwell, Chamberlin, Ishee, Griffis, Sullivan, and Branning, JJ.; Randolph, C.J., and Coleman, P.J., dissent.

Summary of the Opinion

The Court adopts new official forms for civil subpoenas:

• Exhibit A: Subpoena to Produce Materials or to Permit Inspection of a Premises (Civil Action).
• Exhibit B: Deposition Subpoena (Civil Action), expressly designated as Form 7.
• Exhibit C: Subpoena to Appear and Testify at a Hearing or Trial (Civil Action), expressly designated as Form 8.

Each form:

• Includes a conspicuous command: “You shall not produce documents or things or permit inspection until ten days after you were served with this subpoena,” implementing M.R.C.P. 45(d)(2)(A).
• Appends the text of Rule 45(d) and Rule 45(e) to advise subpoena recipients of protections and response duties.
• Reminds the issuing party that the subpoena must first be served on all parties under M.R.C.P. 5 before service on the nonparty recipient (Rule 45(a)(5)).
• Contains a Proof of Service section to be “promptly filed” under M.R.C.P. 45(c)(2) and, for testimony subpoenas, a tender of fees/mileage unless an exception applies.

The order further:

• Makes Mississippi Judicial College posting of the forms optional (no longer required).
• Directs the Clerk to spread the order on the Court’s minutes and to send a certified copy to West Publishing for inclusion in the Southern Reporter (Mississippi Edition) and the Mississippi Rules of Court.
• States the amendments are effective immediately upon entry.

Analysis

Precedents Cited

The order does not cite case law or prior opinions. It functions as an exercise of the Court’s rulemaking authority to amend the Mississippi Rules of Civil Procedure and their official forms. Accordingly, the analysis turns on the text of Rule 45 as reproduced and embedded in the new forms and the procedural policies reflected in those provisions, rather than judicial precedents interpreting them.

Legal Reasoning

Although the order is administratively concise, its structure and the content of the forms reveal several interlocking policy and doctrinal choices:

• Conspicuous ten-day hold for production or inspection:
  • Rule 45(d)(2)(A) requires that, absent a court order shortening time for good cause, a subpoena for production or inspection “shall allow not less than ten days” to comply and that production/inspection “shall not be made until the tenth day after the date of service” on the recipient. The rule also mandates this be “conspicuously noted on the face of the subpoena.”
  • The new forms implement this requirement in bold, unequivocal language, preventing inadvertent or pressured early production and giving parties time to raise objections, move to quash, or seek protective relief.
• Notice-first service on parties under Rule 45(a)(5):
  • Each form warns that subpoenas must first be served on all parties pursuant to M.R.C.P. 5 before service on the recipient. This ensures adversaries have contemporaneous notice and can timely object before documents are produced or testimony obtained from a nonparty.
• Embedding Rule 45(d) and (e) within the forms:
  • The forms append the text of Rule 45(d) (protections and quash/modify standards) and Rule 45(e) (duties in responding, including ESI production formats, inaccessibility, and privilege clawback). This “on-the-face” legal notice is calibrated to reduce confusion for nonparties and to strengthen procedural fairness.
• Clarifying deposition practice and entity testimony:
  • The deposition subpoena form instructs that if the subpoena is directed to an entity, it must designate one or more persons to testify about specified topics. The form mirrors the well-known “30(b)(6)-style” obligation to present witnesses knowledgeable about matters “known or reasonably available to the entity,” aligning nonparty entity depositions with topic-focused testimony.
  • The form also contemplates simultaneous document requests in connection with a deposition, harmonizing with Rule 45’s framework for combined testimony and production requests.
• Proof-of-service and fee-tender compliance:
  • The Proof of Service sections reflect Rule 45(c)(2)’s requirement for prompt filing and, for testimony subpoenas, the tender of one day’s attendance and mileage unless the subpoena issues on behalf of the State or the court excuses tender for indigence. This reduces defective service disputes.
• ESI stewardship and burden reduction:
  • Rule 45(e)(1) and (2), reproduced in the forms, codifies practical ESI duties: production in the ordinary course or labeled to match requests; production in the ordinary or reasonably usable form if no format is specified; no need to produce the same ESI in more than one form; and no duty to retrieve ESI from sources “not reasonably accessible” absent court order and “good cause.”
  • Rule 45(d)(2)(C) authorizes courts to quash or modify unreasonable or oppressive subpoenas or to condition denial of such relief on cost-advancing by the requesting party—clear signals of proportionality and cost control in third-party discovery.
• Administrative dissemination choices:
  • The Court removes the mandate that the Mississippi Judicial College host the forms, while allowing it to continue posting at its discretion. Instead, the Clerk is directed to ensure publication in the official reporters and compiled rules. This centralizes authority and ensures the versions carried in the rulebook are treated as the official, controlling iterations.

Impact

• On lawyers and litigants:
  • Practitioners should transition immediately to the official forms; older templates risk noncompliance (e.g., missing the conspicuous ten-day notice or the appended Rule 45 text).
  • The “serve parties first” reminder will likely curtail “surprise” third‑party subpoenas and reduce emergency motion practice stemming from lack of notice.
  • Integrating ESI rules into the forms improves clarity for nonparties, thereby lowering the incidence of format disputes and duplicative ESI productions.
• On nonparty subpoena recipients:
  • Nonparties receive clearer, on‑its‑face advisements of rights (to object, to seek quash/modify, to withhold privileged material and invoke clawback) and duties (organization/labeling, ESI format rules, and timelines), empowering them to respond efficiently and lawfully.
  • Entity recipients are expressly advised of their duty to designate witnesses for topic‑based depositions.
• On courts:
  • Standardized forms will likely reduce technical defects and motion practice over basic subpoena content, while emphasizing proportionality and burden controls through Rule 45(d) and (e).
  • The ten‑day hold, now conspicuously embedded, should diminish disputes about premature production and ensure litigants have adequate time to object or seek protective orders.
• On rule publication and access:
  • With the Clerk tasked to send the order to West and update the Mississippi Rules of Court, users can rely on the official reporters and rulebooks as the authoritative source of the forms, while the Mississippi Judicial College retains discretion, not obligation, to host them.
• On future litigation and discovery practice:
  • Expect closer adherence to proportionality and burden‑balancing in third‑party discovery, more disciplined ESI negotiations, and greater judicial willingness to shift costs or limit scope when subpoenas are oppressive or unduly burdensome.

Complex Concepts Simplified

• Ten‑day production hold:
  • Except when a court shortens time for good cause, a subpoena cannot demand immediate production. The recipient gets at least ten days from service before producing or allowing inspection. This waiting period gives other parties a fair chance to object.
• Quash or modify a subpoena:
  • The court must quash or modify if the subpoena allows unreasonably short compliance time, seeks privileged/protected material without a valid exception, designates an improper place for examination, or imposes undue burden or expense. The court may also impose conditions (like cost‑shifting) rather than quashing outright.
• Trade secrets and unretained expert information:
  • If a subpoena seeks confidential business information or asks an unretained expert for opinions derived from their expertise (not tied to specific events in dispute), the court will allow discovery only on specified, protective conditions, if at all.
• ESI format and duplication:
  • If the subpoena does not specify a format for ESI, the recipient can produce it as kept in the ordinary course or in a reasonably usable form. No need to produce the same ESI in multiple formats.
• Not reasonably accessible sources:
  • Recipients need not search or produce from ESI sources that are not reasonably accessible due to undue burden or cost (for example, obsolete backup tapes). If challenged, the recipient must show inaccessibility; the court can still order discovery for good cause and may set conditions (like cost‑sharing or narrowed scope).
• Privilege and clawback:
  • If a recipient withholds documents as privileged, they must expressly assert the claim and describe the materials sufficiently to allow the requester to contest the claim (a privilege log approach).
  • If privileged material is inadvertently produced, the producer can give notice. Recipients must promptly return, sequester, or destroy it, refrain from using it until the court decides, attempt to retrieve any disseminated copies, and may submit it under seal for the court to rule. The producer must preserve the material until the claim is resolved.
• Service on parties first:
  • Before serving the subpoena on the nonparty, you must serve it on all other parties in the case. This ensures transparency and affords a fair opportunity to object.
• Witness fees and mileage:
  • For testimony subpoenas (depositions and trial), unless an exception applies (for subpoenas on behalf of the State or an indigent party excused by the court), the serving party must tender one day’s witness fee and mileage at the time of service.
• No personal appearance for document‑only subpoenas:
  • If a subpoena only commands production/inspection of documents or premises, the recipient generally need not appear in person unless the subpoena also commands attendance at a deposition, hearing, or trial.
• Entity depositions:
  • When a subpoena targets an organization, it must list the topics, and the organization must designate one or more representatives to testify about information known or reasonably available to the entity.

Practical Checklists

For the Issuing Party

• Use the official forms adopted by the Court (Exhibits A–C; Exhibit B is Form 7; Exhibit C is Form 8).
• Serve the subpoena on all parties under M.R.C.P. 5 before serving the nonparty recipient (Rule 45(a)(5)).
• Include the conspicuous ten‑day production/inspection hold language; do not schedule production earlier unless you obtain a court order shortening time for good cause.
• Append Rule 45(d) and (e) to the subpoena as shown in the forms.
• For testimony subpoenas, tender fees and mileage unless an exception applies or the court excuses tender.
• File the Proof of Service promptly under Rule 45(c)(2).
• For entity depositions, specify the topics clearly and the recording method for the deposition.

For the Subpoena Recipient

• Calendar the ten‑day waiting period; you generally should not produce before the tenth day after service absent a court order.
• Consider timely written objections within ten days of service or by the compliance date (if earlier). Objections suspend your duty to produce until the court orders otherwise.
• If burdensome, confidential, or seeking expert opinion not tied to the dispute, consider a motion to quash/modify or to impose protective conditions.
• For ESI, produce in the ordinary course or a reasonably usable format; identify sources that are not reasonably accessible due to undue burden or cost.
• Segregate privileged or work-product materials and prepare a proper description if withholding; invoke clawback promptly if privileged material was produced inadvertently.
• If the subpoena only seeks documents/inspection, you usually need not appear in person unless also commanded to attend a deposition, hearing, or trial.

Conclusion

This order materially strengthens the usability, clarity, and fairness of Mississippi civil subpoena practice. By adopting official, rule‑embedded subpoena forms (including Exhibit B as Form 7 and Exhibit C as Form 8), mandating conspicuous notice of the ten‑day production/inspection hold, and appending the core protections and duties in Rule 45(d) and (e), the Court reduces defects, promotes proportional discovery, and better equips nonparties to respond lawfully. The renewed emphasis on serving parties first guards against surprise and preserves adversarial process. The integration of ESI rules and clawback procedures aligns practice with contemporary discovery realities. Although not accompanied by case citations or an explanatory opinion, the order signals a definitive procedural shift toward standardized, rights‑aware subpoenas that should lower litigation friction and improve compliance across Mississippi civil courts.