Under Delaware’s Uniform Interstate Depositions and Discovery Act, the Prothonotary (the clerk) of the county where discovery is sought issues a Delaware subpoena for a foreign one submitted to it. We prepare the request, the requesting attorney signs it, and we submit and serve it.
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Every Delaware Order Includes
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Every Delaware County
We take subpoena domestications in all three counties; the Prothonotary’s charge is in your quote. See the county finder or the Prothonotary directory for each Superior Court office’s street address and court website. The offices sit in Wilmington, Dover and Georgetown.
Records Subpoenas Go to the Same Prothonotary
A documents-only subpoena goes to the same Prothonotary; the custodian need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial, under Rule 45(c)(2)(A).
Delaware Subpoena Domestication Order
Our quote covers document preparation, the clerk’s fee and service if ordered.
Section 4311 and Superior Court Civil Rule 45 fix four stops between the out-of-state court and the witness in Delaware.
Section 4311(c)(1) has a party submit the foreign subpoena to the prothonotary of the county where discovery is to be conducted; we make that submission for the requesting attorney, and the request is not an appearance in Delaware’s courts.
The Prothonotary, in accordance with the court’s procedure, promptly issues a subpoena for service on the person named; it must incorporate the terms used in the foreign subpoena and contain or be accompanied by the names, addresses and telephone numbers of all counsel of record in the proceeding and of any party not represented by counsel.
The requesting party serves the prior notice of any commanded production of documents and things or inspection of premises before trial on each party under Rule 5(b); our server, a non-party at least 18 years old, then hands a copy to the person named.
Where proof is needed, our server certifies a statement of the date and manner of service and the names of the persons served, for filing with the Prothonotary of the issuing county.
Subject to Rule 45(d)(2), a person commanded to produce and permit inspection and copying may serve on the party or attorney designated in the subpoena a written objection to inspection or copying of any or all of the designated materials or of the premises, within 14 days after service, or before the compliance time if that falls less than 14 days after service, under Superior Court Civil Rule 45(c)(2)(B). Rule 6(a) leaves out the day of service and carries a last day on a Saturday, Sunday, legal holiday or day the Prothonotary’s office is closed to the next day it is open.
Delaware enacted the Uniform Interstate Depositions and Discovery Act (UIDDA) as a statute in Title 10 of the Delaware Code. Its own words below set the county, the officer who issues the Delaware subpoena and the rules that govern service.
To request issuance of a subpoena under this section, a party must submit a foreign subpoena to the prothonotary in the county in which discovery is sought to be conducted in this State.
A request for the issuance of a subpoena under this act does not constitute an appearance in the courts of this State.
… the prothonotary, in accordance with the court’s procedure, shall promptly issue a subpoena for service upon the person to which the foreign subpoena is directed.
… must be served in compliance with this title and applicable Superior Court Rules for service of subpoena.
In Greenspon v. Prommis Holdings, LLC, C.A. No. N17M-03-300, 2017 WL 4856850, slip op. at 2 (Del. Super. Oct. 25, 2017), a Commissioner held that a party cannot use § 4311(c) to reach discovery from a Delaware nonparty beyond what the foreign court allows.
On a foreign subpoena, the Commissioner described Delaware’s role as a conduit that enforces the foreign subpoena on the terms the foreign court set, in Adams v. Suez Water Management & Services, Inc., C.A. No. N19M-11-022 LMP, 2020 WL 1082401, slip op. at 2 (Del. Super. Mar. 4, 2020), and declined on reargument to re-decide privilege objections already lost in that court, 2020 WL 3073083, slip op. at 4-5 (Del. Super. June 8, 2020).
Edelson v. Edelson, C.A. No. N20M-09-140, slip op. at 2-3 (Del. Super. Jan. 20, 2021), weighed a Delaware nonparty’s own interests where an issue had not been fully litigated in the foreign court.
No reported Delaware appellate decision has yet interpreted § 4311; these are unreported Superior Court orders, and the statute’s text governs submission, issuance and service.
Official texts: 10 Del. C. § 4311 and 10 Del. C. § 8903; 1 Del. C. § 501; the Superior Court Civil Rules (Rules 5, 6, 26, 45, 54, 77 and 79.1); the Delaware Uniform Rules of Evidence (D.R.E. 503 and 902); Superior Court Administrative Directive 2012-3; the Court’s eFile procedures for File & ServeXpress; its Out of State Subpoena in a Civil Case form; 45 C.F.R. § 164.512(e). General information, not legal advice. The official text controls.
Served 123 LLC prepares the § 4311 papers for the Prothonotary and has the Delaware subpoena served.
Get a Free Quote Online →Section 4311(d) sends service to Title 10 and the Superior Court Rules, and § 4311(e) applies Delaware law to compliance: who serves, how the copy is delivered, the witness fee, notice to the parties, proof, and the objections and motions that follow. For a summons, complaint or registered-agent service on a Delaware company, see process service in Delaware.
Section 4311(d) has the subpoena served in compliance with Title 10 and the Superior Court Rules for service of subpoenas. Under Rule 45(b)(1), it may be served by the Sheriff or by any person who is not a party and is not less than 18 years of age. The Sheriff’s fee is paid to the Sheriff; our server is in your quote.
§ 4311(d); Super. Ct. Civ. R. 45(b)(1)For attendance in any court, 10 Del. C. § 8903(a) allows each day $2.00, and 3 cents per mile going and returning, and Rule 54(g) makes deposition witness fees the same as the statutory fees for testifying in court. Neither Rule 45 nor § 8903 sets a time for paying them; we advance the fee on the written quote.
10 Del. C. § 8903(a); Super. Ct. Civ. R. 54(g)Service of a subpoena upon a person named therein shall be made by delivering a copy thereof to such person. Our server hands the copy to the witness named in the Delaware subpoena.
Super. Ct. Civ. R. 45(b)(1)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).
Super. Ct. Civ. R. 45(b)(1)When proof of service is necessary, it is made by filing with the Prothonotary of the county from which the subpoena issued a statement of the date and manner of service and of the names of the persons served, certified by the person who made the service. Our server prepares and signs that statement once the witness has the copy in hand, and we send it to you with the date and manner of service.
Super. Ct. Civ. R. 45(b)(2)Subject to paragraph (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises.
Super. Ct. Civ. R. 45(c)(2)(B)Under § 4311(f), an application to the Superior Court for a protective order or to enforce, quash, or modify a subpoena issued by the prothonotary under subsection (c) of this section must comply with the rules or statutes of this State and be submitted to the Superior Court in the county in which discovery is to be conducted. On timely motion, the Court shall quash or modify the subpoena if it (i) fails to allow reasonable time for compliance, (ii) requires disclosure of privileged or other protected matter and no exception or waiver applies, or (iii) subjects a person to undue burden.
§ 4311(f); Super. Ct. Civ. R. 45(c)(3)(A)Upon motion by a party or by the person from whom discovery is sought, and for good cause shown, the Court … may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following: (1) that the discovery not be had, under Rule 26(c). Under § 4311(f), that application, like a motion to quash, must comply with the rules or statutes of this State and be submitted to the Superior Court in the county in which discovery is to be conducted.
Super. Ct. Civ. R. 26(c); § 4311(f)Served 123 LLC makes the Rule 45(b) service and returns the server’s certified statement.
Get a Free Quote Online →A records subpoena goes to the same Prothonotary. Below: when a documents-only subpoena needs no appearance, the D.R.E. 902(11) certification of business records, the patient privilege for medical records, and the federal HIPAA steps for health records (notice, or a qualified protective order). No health records in yours? Skip to Common Traps.
A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial. A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand. Section 4311(e) applies these Delaware rules to the subpoena the Prothonotary issues under subsection (c).
Super. Ct. Civ. R. 45(c)(2)(A), 45(d)(1); § 4311(e)Under D.R.E. 902(11), the original or a copy of a domestic record that meets the requirements of Rule 803(6)(A)-(C), as shown by a certification of the custodian or another qualified person that complies with a federal statute or a law of this State, is self-authenticating. Before the trial or hearing, the proponent must give an adverse party reasonable written notice of the intent to offer the record, and must make the record and certification available for inspection, so that the party has a fair opportunity to challenge them. Our server delivers the Delaware subpoena only; the certification is the custodian’s to sign.
D.R.E. 902(11)A patient has a privilege to refuse to disclose and to prevent any other person from disclosing confidential communications made for the purpose of diagnosis or treatment of the patient’s physical, mental or emotional condition, including alcohol or drug addiction, among the patient, the patient’s mental health provider, physician or psychotherapist, and persons who are participating in the diagnosis or treatment under the direction of the mental health provider, physician or psychotherapist, including members of the patient’s family, D.R.E. 503(b). Under the D.R.E. 503(d)(3) exception, there is no privilege under this rule for a communication relevant to an issue of the physical, mental or emotional condition of the patient in any proceeding in which the patient relies upon the condition as an element of the patient’s claim or defense or, after the patient’s death, in any proceeding in which any party relies upon the condition as an element of the party’s claim or defense.
D.R.E. 503(b), (d)(3)When a Delaware subpoena for health records comes with no court or tribunal order, (e)(1)(ii) governs: the covered entity may release protected health information on either of two satisfactory assurances from the party seeking it. Under (e)(1)(ii)(A), the assurance is “that reasonable efforts have been made by such party to ensure that the individual who is the subject of the protected health information that has been requested has been given notice of the request.” The other route, under (e)(1)(ii)(B), is a protective order: “The covered entity receives satisfactory assurance, as described in paragraph (e)(1)(iv) of this section, from the party seeking the information that reasonable efforts have been made by such party to secure a qualified protective order that meets the requirements of paragraph (e)(1)(v) of this section.” Our server delivers the Delaware subpoena only; on either route, that assurance must come from the party seeking the records, in writing, as the next two cards set out.
45 C.F.R. § 164.512(e)(1)(ii)For the notice route, (e)(1)(iii) has the party give the covered entity a written statement and accompanying documentation demonstrating that: (A) The party requesting such information has made a good faith attempt to provide written notice to the individual (or, if the individual’s location is unknown, to mail a notice to the individual’s last known address); (B) The notice included sufficient information about the litigation or proceeding in which the protected health information is requested to permit the individual to raise an objection to the court or administrative tribunal; and (C) The time for the individual to raise objections to the court or administrative tribunal has elapsed, and: (1) No objections were filed; or (2) All objections filed by the individual have been resolved by the court or the administrative tribunal and the disclosures being sought are consistent with such resolution. Under (e)(1)(vi), the covered entity may instead act itself: it “may disclose protected health information in response to lawful process described in paragraph (e)(1)(ii) of this section without receiving satisfactory assurance under paragraph (e)(1)(ii)(A) or (B) of this section, if the covered entity makes reasonable efforts to provide notice to the individual sufficient to meet the requirements of paragraph (e)(1)(iii) of this section or to seek a qualified protective order sufficient to meet the requirements of paragraph (e)(1)(v) of this section.” Our server delivers the Delaware subpoena only.
45 C.F.R. § 164.512(e)(1)(iii)(A)-(C)For the protective-order route under (e)(1)(v), a qualified protective order means, with respect to protected health information requested under paragraph (e)(1)(ii) of this section, an order of a court or of an administrative tribunal or a stipulation by the parties to the litigation or administrative proceeding that: (A) Prohibits the parties from using or disclosing the protected health information for any purpose other than the litigation or proceeding for which such information was requested; and (B) Requires the return to the covered entity or destruction of the protected health information (including all copies made) at the end of the litigation or proceeding. For that route, (e)(1)(iv) has the party seeking the information give the covered entity “a written statement and accompanying documentation demonstrating that: (A) The parties to the dispute giving rise to the request for information have agreed to a qualified protective order and have presented it to the court or administrative tribunal with jurisdiction over the dispute; or (B) The party seeking the protected health information has requested a qualified protective order from such court or administrative tribunal.” A court order is a route of its own: under (e)(1)(i), a covered entity may disclose “In response to an order of a court or administrative tribunal, provided that the covered entity discloses only the protected health information expressly authorized by such order.”
45 C.F.R. § 164.512(e)(1)(i), (iv)-(v)Served 123 LLC handles the issuance and service of a Delaware records subpoena.
Get a Free Quote Online →Where a Delaware foreign subpoena usually goes wrong: the county it is sent to, what the completed subpoena leaves out, the notice and time it gives, and the court that hears a motion.
We check the papers we prepare and the service we make for The Wrong County, Foreign Terms Not Carried Over, No Counsel List and Missing Rule 45 Contents, and tell you what needs fixing. No Notice of Production is the requesting party’s notice to the other parties. A motion comes after service, and we tell you which court hears it.
Pick or search New Castle, Kent or Sussex to see which Superior Court Prothonotary issues the subpoena there, then start a quote; each office is listed in the directory below.
Delaware’s statute beside the versions adopted in Maryland, New Jersey and Pennsylvania: the citation, the attorney question under the Act, and the officer who issues the local subpoena, each taken from that state’s own law. A “Check” entry means that state’s court rules leave the attorney question open; Delaware’s entry gives the route we use there.
| State | Act Adopted | Local Attorney Required by the Act | Who Issues |
|---|---|---|---|
| Delaware | 10 Del. C. § 4311 (eff. July 12, 2010) | The Requesting Attorney Signs; We Submit It (our route) | Superior Court Prothonotary, discovery county |
| Maryland | Md. Code, Cts. & Jud. Proc. §§ 9-401 to 9-407 | Check | Clerk of the circuit court, discovery county |
| New Jersey | New Jersey Court Rule 4:11-4(b) (2014) | No | Clerk of the Superior Court (or a New Jersey attorney) |
| Pennsylvania | 42 Pa.C.S. §§ 5331-5337 (Act 183 of 2012) | No | Prothonotary where the witness resides, works or does business |
Each answer cites the Delaware statute, Superior Court rule or court source it rests on. Questions common to every state are in our Subpoena Domestication FAQ. General information, not legal advice.
No. The Act gets the subpoena issued; serving it and complying with it then follow Delaware’s own subpoena rules, just as for a subpoena a Delaware case issues. Who may serve it, how the copy is delivered, notice to the other parties and the proof that goes back all come from Superior Court Civil Rule 45. See the Rule 45 service cards.
Use the county where the witness will testify or produce records, not the county where the case is pending; § 4311(c)(1) speaks of the county “in which discovery is sought to be conducted.” Each of Delaware’s three counties keeps its own Prothonotary’s office. See Find Your Discovery County Prothonotary.
The requesting attorney signs the request. Our side is the paperwork and the legwork: drafting from the foreign subpoena and counsel list, delivering it to the county Prothonotary, and serving the witness once the subpoena issues under § 4311(c)(2). See the route.
Yes. Under Rule 45(a)(3), the Prothonotary issues it signed but otherwise blank, and the party who requested it completes it before service. On a § 4311 request, we prepare the papers, with the foreign terms and the counsel list, before we submit them to the Prothonotary of the discovery county. See the route.
The foreign subpoena’s own terms, carried over under § 4311(c)(3), and the contact details of every counsel of record and every unrepresented party, with the Rule 45(a)(1) items. We check each one against the foreign subpoena before we submit it. See Common Traps in Delaware.
No. Under § 4311(c)(1) the request follows where the discovery will happen, not where the witness company is incorporated, so a Delaware corporation whose deposition or document production is set in Dover goes to the Kent County Prothonotary, and one set in Georgetown goes to the Sussex County Prothonotary. See the county finder.
Any adult who is not a party to the case. Rule 45(b)(1), which § 4311(d) applies, lets the Sheriff or any non-party aged 18 or older serve the subpoena; the Sheriff is one option, not a requirement, so our server, an adult with no part in the case, may deliver it. See who may serve it.
In person. Rule 45(b)(1) calls for delivering a copy to the person named, by the Sheriff or by a non-party 18 or older, and our server makes that delivery and then signs the proof. See Personal Delivery to the Witness and The Server’s Certified Statement.
Yes: each party in the foreign case is owed advance notice whenever the subpoena demands documents or premises before trial, Rule 45(b)(1). That notice is a step for the requesting side, served on each party in the foreign action in the manner of Rule 5(b), and it is separate from the copy our server delivers to the witness. See Prior Notice Under Rule 5(b).
The server’s certified statement, filed with the Prothonotary that issued the Delaware subpoena. Because § 4311(c)(2) has the discovery county’s Prothonotary issue it, the proof returns to the same office that took the request, and Rule 45(b)(2) calls for it only when proof is necessary. See the server’s statement.
Section 8903(a) pays a Delaware witness $2.00 for each day, plus 3 cents a mile both ways, which Rule 54(g) extends to deposition testimony. We advance it on the written quote, so the witness is paid without a separate step from you. See Witness Fees Under § 8903.
No. Section 8903(a) sets only the amount and Rule 54(g) applies it to a deposition; neither says the fee travels with the subpoena or when it is paid. Ask counsel if the witness raises it. See Witness Fees Under § 8903.
Fourteen days from service under Rule 45(c)(2)(B), or less when the compliance date comes first. Enter the date of service in the calculator, which counts the Delaware legal holidays it lists, and compare its result with the compliance date printed on the subpoena. See the objection deadline calculator.
In the Superior Court sitting in the discovery county, which is the county where the deposition or production takes place, § 4311(f). Filing it in another county is The Wrong County for a Motion in Common Traps. See Motions to Quash or Modify.
The requesting party can apply to enforce it. § 4311(f) sends an application to enforce to the same court as a motion to quash, the Superior Court in the discovery county, and the application must follow Delaware’s own rules. See where motions go.
Only within the patient privilege and its exceptions. Under Rule 503(c) of the Delaware Rules of Evidence, “The privilege may be claimed by the patient, the patient’s guardian or conservator, or the personal representative of a deceased patient. The person who was the mental health provider, physician or psychotherapist at the time of the communication is presumed to have authority to claim the privilege but only on behalf of the patient.” See the Medical Records card.
Yes. A record that meets the rule is self-authenticating, so its genuineness needs no witness. The certification it rests on must be one which “complies with a federal statute or a law of this State.” The proponent also owes the adverse party the advance written notice and inspection set out in full on the card. Signing the certification is the custodian’s job, not ours. See Certified Business Records.
Yes. The Superior Court fee schedule under Rule 77(h) lists $75.00 for Complaints Requesting Orders, among them Subpoena Requests, and $10.00 for a Subpoena issued by Prothonotary. Those are the Court’s charges, not ours; whatever the Prothonotary charges is in your written quote, beside our own preparation and service charges for the order. See the Act’s rules and fees.
Promptly. Under § 4311(c)(2) the prothonotary shall promptly issue the subpoena in accordance with the court’s procedure, with no judge’s order first; the Act names no number of days. Service waits for issuance, so put your deposition date in the Requested Deadline field of the quote form; your quote will say whether it can be met. See the Act’s issuance rule.
Not a set number. Rule 45 names no count of days to comply; its test is reasonableness, and a return date that does not allow reasonable time is one ground, under Rule 45(c)(3)(A)(i), for the Court to quash or modify the subpoena on timely motion. The separate 14-day window covers objections to production. See the grounds to quash.
Only if also commanded to appear for deposition, hearing or trial. Rule 45(c)(2)(A), on whether the custodian must come in, and Rule 45(d)(1), on how the documents are to be organized and labeled for production, are quoted word for word in the records section of this page. See Records Without a Personal Appearance.
Under § 4311(i), the section takes effect upon enactment, July 12, 2010; the Act card above quotes the end of its history note. Superior Court Civil Rule 45 was last amended effective July 1, 1995, after its earlier amendments in 1970, 1980, 1990 and 1991. See the history of the Act.
One written quote covers document preparation, our submission to the Prothonotary, the clerk’s fee and service, when you order service.
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