A Delaware civil subpoena is a court-ordered document that compels a person to testify, produce documents, or both in a pending civil case, and it is governed by Superior Court Civil Rule 45. The official blank form is available through the Delaware Courts website or from the Prothonotary’s office in the county where your case is pending.1Delaware Courts. Forms Getting the form right the first time keeps opposing counsel from using a technical defect to delay your discovery.
Pick the Right Type of Subpoena
Delaware recognizes two categories, and the one you choose dictates what the command section says.
- A subpoena ad testificandum commands a person to appear and give testimony at a specific date, time, and place. Use it when you need a witness under oath at a deposition or trial.
- A subpoena duces tecum commands a person to produce designated documents, electronic records, or other tangible items for inspection and copying. The recipient does not have to testify unless the subpoena also includes a testimony command.
Rule 45 lets you combine both commands into a single subpoena, so you can require a witness to appear and bring records at the same time.2Delaware Courts. Rules of Civil Procedure for the Superior Court of the State of Delaware – Section: Rule 45 A standalone document-production subpoena works when you only need the records.
Filling Out the Form
Download the correct subpoena from the Delaware Courts forms page or pick one up at the Prothonotary’s office in the county where your case is filed.1Delaware Courts. Forms Several sections need attention, and each one is a potential target for an objection if you get it wrong.
Case Caption and Recipient Information
At the top of the form, enter the name of the court (Superior Court or Court of Chancery), the county, the full case title listing plaintiffs and defendants, and the civil action number assigned when the case was filed. Rule 45(a)(1) requires all of this.2Delaware Courts. Rules of Civil Procedure for the Superior Court of the State of Delaware – Section: Rule 45 Below the caption, write the full legal name and address of the person or entity the subpoena is directed to.
The Command
This is where most problems happen. For testimony, specify the exact date, time, and street address where the person must appear. For document production, describe each category of records with enough detail that the recipient knows precisely what to search for. Broad, vague requests invite objections for undue burden and often get quashed.
Keep in mind that the recipient of a document subpoena may produce records either as they are kept in the ordinary course of business or organized and labeled to match the categories in your request.2Delaware Courts. Rules of Civil Procedure for the Superior Court of the State of Delaware – Section: Rule 45 Drafting clear categories makes the review on your end much easier.
Required Rights Notice
Every subpoena must include the full text of Rule 45 subdivisions (c), (d), and (e). This is not optional and is not limited to subpoenas aimed at non-parties.3Court Rules Network. Rule 45 Subpoena – DE Superior Civil Those subdivisions tell the recipient about their rights to object, seek a protective order, and face consequences for ignoring the subpoena. Leaving the text off makes the subpoena defective on its face.
Signature
An attorney acting as an officer of the court signs the subpoena to give it the force of a court order. If no attorney is involved, the Clerk of the Court issues and signs the form. An unsigned subpoena has no legal effect.
What It Costs
In the Superior Court, the filing fee for a subpoena request is $75.4Delaware Courts. Civil and Criminal Fees – Superior Court In the Court of Chancery, the fee for issuing an original subpoena is $50, each additional copy costs $25, and subpoenas in trust and guardianship matters are reduced to $10 each.5Delaware Courts. Schedule of Fees and Charges – Court of Chancery
Beyond the filing fee, budget for the statutory witness fee. Delaware sets it at $2.00 per day of attendance plus $0.03 per mile for travel to and from the proceeding.6Delaware Code Online. Title 10 – Courts and Judicial Procedure, Chapter 89 Those figures date from an old statute and look low by modern standards, but they are the amounts on the books. You must tender the witness fee and mileage at the time of service.
Serving the Subpoena
An issued subpoena does nothing until it is personally delivered to the named individual. Under Rule 45(b)(1), service can be made by a county Sheriff or by any person who is not a party to the case and is at least 18 years old.2Delaware Courts. Rules of Civil Procedure for the Superior Court of the State of Delaware – Section: Rule 45 You do not need a licensed or “certified” process server, though hiring a professional creates a cleaner record of service.
If the subpoena commands production of documents or inspection of premises before trial, you must also serve prior notice of that command on every other party in the case using the method prescribed by Rule 5(b).2Delaware Courts. Rules of Civil Procedure for the Superior Court of the State of Delaware – Section: Rule 45 Skip that step and opposing counsel will have grounds to challenge whatever you obtain.
After delivery, the person who served the subpoena should complete a return of service documenting the date and method. File it with the court. That is your proof that the recipient is now legally obligated to comply.
If You Received a Subpoena Instead
Readers on the other side of this process have options under the same rule. A recipient served with a document-production subpoena has 14 days after service to serve written objections on the party or attorney named in the subpoena. If the subpoena sets a shorter compliance deadline, objections are due before that date.3Court Rules Network. Rule 45 Subpoena – DE Superior Civil Once objections are served, the requesting party cannot inspect or copy anything without a court order compelling production.
A recipient can also file a motion to quash or modify the subpoena. Under Rule 45(c)(3), the court must quash or modify a subpoena that fails to allow reasonable time for compliance, requires disclosure of privileged or protected material with no exception or waiver, or subjects a person to undue burden. The rule does not set a specific day count for a motion to quash, so moving quickly after service matters. Ignoring a validly served subpoena is the worst available response: under Rule 45(e), failure to obey without adequate excuse may be deemed contempt of court.3Court Rules Network. Rule 45 Subpoena – DE Superior Civil
Out-of-State Cases Needing Delaware Discovery
Delaware’s Rule 45 form is for cases pending in Delaware courts. If your lawsuit is pending in another state and you need testimony or records from someone located in Delaware, you use the Uniform Interstate Depositions and Discovery Act (UIDDA) process at 10 Del. C. ยง4311. The out-of-state party submits the foreign subpoena to the Prothonotary in the Delaware county where the discovery will take place, and the Prothonotary promptly issues a Delaware subpoena incorporating the terms of the foreign one. Submitting the foreign subpoena is not a general appearance in Delaware courts.7Delaware Code Online. Title 10 – Courts and Judicial Procedure, Chapter 43, Subchapter 1 Service of the issued Delaware subpoena then follows the same rules covered above.