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Ayles v. Allen6/2/2005
a was served on Friday, and Graves sent notice of the subpoena to Lesley on August 4, 2003, which was the following Monday.
. In his Findings of Fact and Conclusions of Law, the chancellor held that Graves mailed notice of the subpoena on the next business day after it was served, and this was appropriate and timely. Ayles argues that Graves did not "immediately" serve a copy of the subpoena upon Lesley and, therefore, violated Rule 45.
. We have not previously interpreted the term "immediately" in the context of M.R.C.P. 45. The comment to the rule states as follows:
Paragraph (d)(2)(A) requires that the party serving a subpoena for production or inspection must serve a copy of the subpoena upon all parties to the action immediately after it is served on the person to whom it is directed.
Thus, the rule does not contemplate that the party serving a subpoena may delay serving a copy of the subpoena on the other parties to the action until 10 days before the date designated for the production or inspection. A failure to immediately serve a copy of the subpoena on the other parties may be grounds for extending the time for compliance with the subpoena. Service must be made in accordance with Rule 5.
M.R.C.P. 45 cmt. The comment appears to contemplate a subpoena with a compliance date which is more than ten days into the future. For instance, where the party served with the subpoena has 30 days to comply, the comment cautions the party serving the subpoena against waiting 20 days ("10 days before the date designated for the production"), and then serving a copy of the subpoena on all parties. The comment does not address circumstances such as those before us today where a subpoena is served with ten days allowed for compliance.
. The comment to the rule provides that the service upon "the other parties . . . must be made in accordance with Rule 5." Service under Rule 5 is accomplished by placing the notice in the mail. Thus, were we to hold that "immediately" means at least the same day, the result in this case would be no different. Had Graves strictly complied with the requirement to "immediately" serve a copy of the subpoena by placing it in the mail on Friday, August 1, the notice still would not have been delivered until after the production, since the records were produced immediately. Graves served the subpoena on Friday and immediately obtained the records. Since he already had the records, his decision of whether to mail notice that same day or on the following Monday could not have been motivated by a desire to gain any advantage.
. Furthermore, whether Graves's notice constituted "immediate" service under Rule 45 does not determine whether the subpoena process was illegally used, which is what the law requires to satisfy the elements of abuse of process. Rule 45 in its current form allows a party to obtain records prior to any actual notice to the other parties. Since Graves gained no advantage by waiting until Monday to mail the notice, his decision to mail the notice on Monday rather than Friday cannot serve as the basis for a claim of abuse of process.
. Ayles also argues that Graves was required to hand-deliver the notice to Luckett under M.R.C.P. 5(b). This argument is also without merit. Service is allowed by mail under the plain language of M.R.C.P. 5(b). Graves's notice by mail was permissible, and thus, not illegal.
. Ayles also argues that Graves illegally used the subpoena process because her school records were privileged and therefore outside the scope of discovery under M.R.C.P. 26(b)(1). However, Ayles fails to explain how the school records constitute a "privileged" ma
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