Rules of Civil Procedure

URCP 005. Service and filing of pleadings and other papers. Amend. Eliminates service by fax. Eliminates the requirement that a party must agree to service by email. Describes how to file an affidavit or declaration, given the requirements of e-filing. Makes numerous amendments intended to simplify the text.
URCP 030. Depositions upon oral questions. Amend. Deletes an incorrect reference to appellate transcripts of court hearings as the method for preparing a transcript of a deposition.
URCP 037. Discovery and disclosure motions; Sanctions. Amend. Replaces traditional discovery motions with the process of expedited statements of discovery issues currently found in Code of Judicial Administration Rule 4-502. If approved, the procedural provisions of Rule 4-502 will be deleted. Allows costs and attorney’s fees to be included as part of a statement of discovery issues, but requires a motion for sanctions.

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13 thoughts on “Rules of Civil Procedure
  1. Nathan Whittaker

    Comments re Rule 5:
    Lines 3-4: replace “Except as otherwise provided in these rules or as otherwise directed by the court” with “Unless these rules provide or the court orders otherwise” (avoid passive voice—Garner, 2.3)
    Line 6: delete subparagraph (a)(1)(A) as unnecessary and duplicative of Rule 58A(d).
    Line 7: either delete subparagraph (a)(1)(B) as unnecessary (the words “unless otherwise directed by the court” in (a)(1) should cover this provision)
    Line 8: insert the word “filed” between the words “pleading” and “after”
    Line 10: insert a comma after “court” and replace “other than” with “except”
    Lines 12-13: delete subparagraph (a)(1)(F) as unnecessary and duplicative of (a)(1)(E).
    Lines 16-27: consider replacing with the following for the sake of simplicity:
    (a)(2)(A) a party in default for any reason other than for failure to appear must be served as provided in paragraph (a)(1);
    (a)(2)(B) a party in default for any reason must be served under Rule 4 with a pleading that asserts a new claim for relief against that party; and
    (a)(2)(C) a party in default for any reason must be served under Rule 5(b)(3) with:
    (a)(2)(C)(i) notice of any hearing to determine the amount of damages to be entered against the defaulting party;
    (a)(2)(C)(ii) notice of entry of judgment under Rule 58A(d);
    (a)(2)(C)(iii) other papers as the court directs.
    Line 16: replace “as ordered by the court” with “as the court orders” (avoid passive voice—Garner, 2.3)
    Line 26: replace “pleadings asserting new or additional claims” with “a pleading that asserts a new claim” (avoid plurals—Garner, 2.1)
    Line 39: insert a colon after the word “if”
    Lines 44-48: Paragraph (b)(2) mixes up a method of service (method most likely to be promptly received) with the time to serve (must be served before or on the same day that it is filed). The word “otherwise” on line 7 doesn’t apply here, because the first part of the paragraph isn’t an exception—just like other papers, papers served within 7 days of a hearing “must be served before or on the same day that it is filed.” I recommend deleting the words “If a hearing is scheduled 7 days or less from the date of service, a party must serve a paper related to the hearing by the method most likely to be promptly received. Otherwise,” from this paragraph and inserting it into its own paragraph after (b)(3) as explain below.
    Line 49: replace “A paper served under this rule may be served by:” with “A paper is served under this rule by:”
    Line 64: insert “if the person has no office or the office is closed,” before the word “leaving.” This language is in the federal rule and would prevent a person from serving an attorney at his or her home during business hours.
    Line 66: insert as separate subparagraph (b)(3)(#): “delivering it by any other means that the person consented to in writing.”
    Line 67: insert as separate paragraph (b)(#): ”Service within 7 days of hearing. If a hearing is scheduled 7 days or less from the date of service, a party must serve a paper related to the hearing by the method most likely to be promptly received.”
    Line 68: replace “complete” with “effective” (it matches the heading)
    Line 68: as indicated in the minutes, the committee inserted at the end of this sentence “Service by other means is effective upon delivery.”
    Lines 71-77: (b)(5)(A) as unnecessary—this goes without saying based on (a)(1). The word “preparing” is problematic—it only really applies to proposed orders and judgments. It also calls into question whether a party must serve both a proposed order it prepared, and then serve it again after it was signed by the court. Consider changing (b)(5) as follows:
    (b)(5) Service by the court. Unless the court directs otherwise, an order, judgment, or other paper filed by the court will be served by the court.
    Line 75: replace “preparing” with “filing”
    Line 76: replace “prepared” with “filed”
    Line 76: replace “an order or judgment” with “an order, judgment, or other paper” (notices are routinely prepared and filed by the court)
    Line 89: paragraph (c)(4) should not be grouped with (c)(1)-(3). Under the current version of the state rules and the federal rules, the language of (c)(4) states that a copy of an order directing parties the method of serving numerous defendants must be served on the parties as the court directs, not that the court may order that a copy of the order must be served on the parties. I would recommend revising the structure as follows: (c)—title only; the text of (c) into (c)(1); (c)(1)-(3) into (c)(1)(A)-(C); (c)(4) into (c)(2).
    Lines 102-03: replace “all papers after the complaint that are required to be served” with “a paper after the complaint that is required to be served” (avoid plurals—Garner, 2.1)
    Line 103: replace “Parties” with “A party” (avoid plurals—Garner, 2.1)
    Line 105: delete “of the court” as unnecessary
    Lines 105-06: delete “of the court” as unnecessary, insert who agrees to accept it for filing” after the word “judge”
    Line 110: replace “the original affidavit with a notary acknowledgement” with “an electronically signed and acknowledged affidavit”
    Line 111: replace “46-1-16(7)” with “46-4-205”
    Line 114: replace “e-filing” with electronic filing”
    Line 115: replace “clerk of the court, and the clerk will” with “clerk, who will”
    Lines 117-19: This is a dangling section. I would recommend revising the structure of (f) as follows: (f)—title only; the text of (f) into (f)(1); (f)(1)-(4) into (f)(1)(A)-(d); lines 117-19 into (f)(2).
    Lines 118-19: replace “, including any appeal or until the time in which to appeal has expired” with “and the time for appeal has expired or any appeal has terminated”
    Lines 132-139: consider deleting as outdated.
    Line 144: add the following explanatory notes:
    2014 Amendments
    Former subparagraph (b)(1)(A) was amended to allow service by email upon e-filers without the requirement of written consent. While e-filers could be electronically served with papers filed with the court, there was no equivalent means to electronically serve papers not filed with the court, such as discovery papers or proposed orders. The committee concluded that as e-filers already received notice of e-filed documents by email, the risk of e-filers failing to notice that they had been served with documents was small enough to tip the scales in favor of allowing parties the convenience of serving parties with discovery documents and proposed orders by email.
    Former subparagraph (b)(1)(A) was also amended to remove explicit reference to service by fax. A party is still allowed to be served by a method not mentioned in these rules provided the party consents to the method of service in writing. While it is not necessary to file a written consent to a method of service with the court, a party may do so if it wishes.
    Former subparagraph (b)(1)(B) was amended to remove the provision that service by electronic means is not effective if the party making service leads that the attempted service did not reach the person to be served. The committee concluded that rather than dealing with the consequences of retroactively invalidating service, the better course would be to treat a paper as served when sent and allow the district courts to deal with any problems with receiving notice on a case-by-case basis, much like they have done with service by mail. Despite the change, parties and attorneys are obliged upon learning that a party did not receive the served paper to promptly resend a paper by an alternate means of service.
    Subdivision (f) was added to address the question of how to electronically file an affidavit or declaration of a person other than the e-filer. A conforming notary acknowledgement must contain the information listed in Utah Code Section 46-1-16(7) in or next to the notary’s signature block.
    The language throughout has been amended and reorganized to make the rule more easily understood.

  2. Daniel Young

    I don’t think it is a good idea to allow people to serve by email without consent. I understand that we must agree to service by email through the electronic filing system, but I prefer to receive discovery materials and other documents through mail, unless I have consented to service by email.
    With electronic filing, we are already bombarded with emails and it is too easy for an email to slip through the cracks unless I am expecting, and have agreed, to receive documents through email.
    I believe the better rule is to still require consent to receive documents through email.

  3. Daniel Young

    I don’t think it is a good idea to allow people to serve by email without consent. I understand that we must agree to service by email through the electronic filing system, but I prefer to receive discovery materials and other documents through mail, unless I have consented to service by email.
    With electronic filing, we are already bombarded with emails and it is too easy for an email to slip through the cracks unless I am expecting, and have agreed, to receive documents through email.
    I believe the better rule is to still require consent to receive documents through email.

  4. Superman!

    Some of the proposed changes to RULE 5 are scary at best, and should NOT be changed.
    I am against the change in Rule 5 (b)(2)(A) (now Rule 5 [b][2]) that “a paper that is filed with the court must be served before or on the same day that it is filed”. This rule is too general and does not fit every type of situation that may occur. There are times when you cannot serve another party on the same day that you file the document with the Court. What then, what happens? For example, you could be e-filing the documents at 11:58 p.m., with the Court and then dropping the papers in the mail to the other party shortly thereafter at say 12:00 a.m., which would be the next day. As long as the attached certificate of service states the date of service then why do we need such a rule as to require they are filed and served the same day? As another example- it is extremely common for a party to file a motion for temp orders in a family law case at the time the complaint/Petition is filed with the Court, then obtain a hearing date from the Court for that motion. The motion and notice of hearing along with the Complaint/Petition are then all sent out for personal service upon the opposing party. This rule would prohibit such common and efficient practice, which does not make sense. It’s hard to see why this rule is being amended at all. Courts are not dumb. They have checks and procedures they follow to figure out if a paper was properly served and if enough time has been given before addressing it. Moreover, if there is a problem, the other party can simply object.
    I am against the change in Rule 5 (b)(1)(A)(ii) which allows service upon a person without their consent by email if they have an electronic filing account. It is one thing to have your EFSP send/serve documents to an email address that you have given the EFSP and a completely different thing for an opposing party to send/serve you out of the blue documents directly via an email address, which is believed to be correct. The service of a document by email can only be safely accomplished through receiving the same from the EFSP or when permission is asked from and granted by the receiving party. There are several reasons why. (1) Often the email address that is given by the attorney to the EFSP is different than what is listed with the Bar or known by anyone else. This is because email addresses are subject to being compromised by SPAMMERS after time if the email address is generally given out and used by the public. Often people’s email accounts are compromised and all of the email addresses they have stored in their address books are then passed around and used obtained by SPAMMERS or worse virus. So at our office we find that the only way to to combat the spamming problem is to give our EFSP an email address that we do not disclose to anyone else and then every so often we have to change the email addresses we generally give out and use with the public. If someone does not have to ask for permission to serve a document to us via email then they might have an old address they are sending the documents to and we will miss the service (please note that “old” can mean as much as a millisecond). (2) There is no tracking method to determine if the person that was served by email was actually served by email unless the same is done through an EFSP. (3) If the person who is being served was not asked by the servicer if it is okay to be served by email, then that person who is being served would not be aware of such an attempt and would not be looking for the arrival of the email. Conversely, if the person being served was asked if it is okay to serve via email, then if the email does not come then that person has enough awareness of the situation to follow-up on it and ask for it to be resent. That is why the rule that permission be granted existed in the first place, as it provided the necessary checks to insure that service would be received. (4) Updating the email address with the Utah Bar is not an instantaneous event, and takes time (an attorney just the other day told me that he had been trying to get the Bar to update his email address for over 2 weeks now, when explaining to me why the old email address that I had sent an email to had come back to me as being undeliverable). So in the meantime service is going to an old email address, and not being reached by the person, and such could be very costly for the attorney. Even if a change with the bar was instantaneous, there could still be problems. For example, a person looks on the Bar’s webpage and sees an email address for an attorney. They then go and insert it into the paperwork they are working on. Meanwhile, unbeknownst to that person, the attorney goes to the Bar’s website, and changes his/her email address. The person serving then sends the email out. Service is not received, but yet the Rule would say it was “served”. Moreover, there is no way for anyone to know when the email address was changed… there is no tracking log, which also causes problems for everyone.
    Bottom line here is that we are setting attorney’s up for potential malpractice and at the very least doing a disservice to the people we serve. Service of a document upon another party should be taken VERY, VERY SERIOUSLY and the method employed should have the HIGHEST assurances that it will be received by the intended party. Why would we ever change this or weaken it?
    On another note, this change in the rule will place attorneys at a disadvantage to pro se litigants. The pro se person will always be able to serve the attorney via email because the attorney will have an e-filing account, and the attorney will never be able to serve the pro se litigant via email if they don’t agree to such. This is especially unfair in the area of discovery, where the documents can be voluminous and the cost to print can be high. The attorney will have to print the documents that are sent to him/her via email by the opposing party, at the attorney’s own cost, and the attorney will also have to print the documents that he or she will be sending out to the pro se person at the attorney’s own cost.
    Rule 5 (b)(1)(B) removes the rule that service by electronic means is not effective if the party making service learns that the attempted service did not reach the person to be served.
    WHY? In what circumstance would there ever be a good reason to ignore a return email stating the email was automatically denied by the email service for whatever reason (often for the reason that the email service automatically believed it was SPAM) or not delivered due to an error of some sort?
    This is really a good rule to keep, and goes with the comments I wrote above.
    Finally, I am against the removal of the ability to serve someone via fax if they agree to such (see Rule 5 [b][1][A][iii]). Why are we messing with this? Someone might not have or want service via email, but they have a fax and are willing to receive it by the same. Why are we taking away options here, especially one that, unlike email (as discussed above), at least has a verifiable confirmation that the document was sent and received by the person at that phone number, on the date and time indicated in the fax confirmation?

  5. Michael A. Jensen

    The proposed change to URCP 005 is long overdue, especially allowing service by email for all documents where the attorney has an efiling account. This change is strongly supported.

  6. Michael A. Jensen

    URCP 45(e)(5) should be modified to comport with the changes to URCP 37. The current language in 45(e)(5) refers to a “motion for protective order” and ought to be changed consistent with the language referencing a “Statement of Discovery Issues”.

  7. J.Bogart

    A statement of discovery issues re a nonparty is filed with the court before which the case is pending even when the nonparty is not within the jurisdiction of that court. That seems odd. This provision of 37 appears to conflict with 45(e)(5) which has the nonparty filing a motion for a protective order — is that now a statement of discovery issues? It seems burdensome to require a nonparty to come to the forum of the parties to seek protection, or to defend objections. In any event, it would be helpful to get 37 and 45 in line with one another.

  8. Karthik Nadesan

    First, the revised Rule 37(a) creates a conflict, or at least confusion, with Rule 26(d)(4). Rule 26 categorizes required disclosures — governed by Rule 26(a) — separately from discovery — governed by Rule 26(b)). However, this distinction disappears in Rule 37. Under 37(a)(1)(a), if a party fails to disclose under Rule 26 (in other words fails to disclose initial disclosures, expert reports, or pretrial disclosures), the prejudiced party would need to file a statement of discovery issues under Rule 37(a) rather than a motion to exclude under Rule 26(d)(4), in order to prevent use of the undisclosed witness, document, or report at any hearing or trial. If the advisory committee intends that motions to exclude based on failure to make required Rule 26 disclosures, including pretrial disclosures, are discovery issues that must be addressed by Rule 37, this intent should be expressed more explicitly.
    Second, Rule 37(a)(2) requires that the movant include a certification that the movant conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court action, as well as file a statement of proportionality under Rule 26(b)(2). In the context of enforcing Rule 26(d)(4), an effort to meet and confer may make sense solely to determine whether the failure to disclose was for good cause. A statement of proportionality does not.
    Third, while 37(a)(4) defines required attachments, it fails to define a “permitted attachment” under 37(a)(2) and 37(a)(3). Rule 37(a)(4) should also probably be revised to identify the “disclosure at issue” as a required attachment.
    Fourth, while Rule 37(e) allows the court to retain its the inherent authority to deal with spoliation issues, it is not clear whether the procedure for bringing spoliation to the court’s attention is a statement of discovery issues under Rule 37(a).
    Lastly, Rule 37 fails to state that the 37(a) statement of discovery issues is the sole means for addressing discovery disputes. In contrast, Rule 4-502 makes use of the statement mandatory when it states that “The parties shall do the following before filing with the court any discovery motion ….”

  9. Nathan Whittaker

    Comments re Rule 37:
    Line 37: Consider changing “the person from whom discovery is sought” to the more indefinite “any person from whom discovery is sought.” This language conforms to Federal Rule 26(c)(1).
    Line 38: Consider replacing the word “regarding” to “resolving” as it better describes the purpose of the order.
    Lines 39–44: the wording of the list needs to be altered to make the phrasing of each of the list items consistent. Also, line 41 may be misread to suggest that a court order is required to obtain a subpoena. Consider amending as follows:
    (a)(1)(A) compelling disclosure under Rule 26;
    (a)(1)(B) granting extraordinary discovery under Rule 26;
    (a)(1)(C) compelling compliance with or quashing a subpoena under Rule 45;
    (a)(1)(D) protecting a party from discovery; or
    (a)(1)(E) compelling discovery from a party who fails to make full and complete discovery.
    Lines 74–99: While paragraph (a)(7) claims to be about orders, the list provided is only about protective orders (except for (K), addressed below). As the authority to make any order resolving discovery is clearly implied in (a)(1), I think all that this paragraph needs to be is an illustrative list of protective orders. Also, the language of the protective order list is outdated; I suggest adopting the updated versions of (a)(7)(A)–(H) that are in Federal Rule 26(c)(1), and updating (I) and (J) to match. Specifically, I would recommend changing these lines as follows:
    (a)(7) Protective orders. The court may, for good cause, enter an order to protect a party or person from annoyance, embarrassment, oppression, undue burden or expense, or to achieve proportionality under Rule 26(b)(2), including one or more of the following:
    (a)(7)(A) forbidding the disclosure or discovery;
    (a)(7)(B) specifying terms, including time and place, for the disclosure or discovery;
    (a)(7)(C) prescribing a discovery method other than the one selected by the party seeking discovery;
    (a)(7)(D) forbidding inquiry into certain matters, or limiting the scope of disclosure or discovery to certain matters;
    (a)(7)(E) designating the persons who may be present while the discovery is conducted;
    (a)(7)(F) requiring that a deposition be sealed and opened only on court order;
    (a)(7)(G) requiring that a trade secret or other confidential research, development, or commercial information not be revealed or be revealed only in a specified way;
    (a)(7)(H) requiring that the parties simultaneously file specified documents or information in sealed envelopes, to be opened as the court directs;
    (a)(7)(I) allowing a party to defer its answer to a question about a fact, the application of law to fact, or an opinion about either, until after designated discovery has been completed, a pretrial conference, or other later time; and
    (a)(7)(J) allocating the costs, expenses, and attorney fees of discovery among the parties as justice requires.
    Lines 105–112: Paragraph (a)(7) combines a list of protective orders with the provision for expenses and attorney fees. While these are all orders, all but one of them are a specific type of order, and the provision for expenses and attorney fees is likely to get lost or ignored as just another type of protective order. I would suggest moving it out into a paragraph (a)(#). Also, the word “costs” is confusing, as it usually refers to taxable costs under Rule 54(d). What I believe the drafters of the federal rule had in mind when they said “reasonable expenses, including attorney fees” was attorney fees and litigation expenses that are not normally taxable under 54(d). Third, the language of this provision only applies to a party paying another party’s expenses and fees—I see no good reason why non-parties should not be subject to this rule or be able to take advantage of it. Finally, the wording of this paragraph is awkward. Specifically, I would recommend changing these lines as follows:
    (a)(#) Expenses and attorney fees. The court may order a party, person, or attorney to pay the reasonable expenses and attorney fees incurred by the other party or person on account of the statement of discovery issues if:
    (a)(#)(A) the court rules against the party or person in deciding the statement of discovery issues, or the party or person provides the contested discovery or withdraws the contested discovery request after a statement of discovery issues is filed; and
    (a)(#)(B) the court finds that the party, witness, or attorney did not act in good faith or asserted a position that was not substantially justified.
    Line 114: replace “costs” with “expenses” for the reasons explained above.
    Lines 127–138: this is a list of “appropriate sanctions for the failure to follow [the court’s] orders” and therefore is a list of nouns. This is supported by the fact that the main sentence that the list splinters off from already has a main verb, “may impose,” and so all other verbs must be in a non-finite form such as an infinitive, gerund, or participle. Therefore, the form of each item in the list should be in gerund (“[verb]+ing”) form, just as they are in Federal Rule 37(b)(2)(A).
    Lines 139–145: This language is awkward and clunky. I would recommend adopting the wording of Federal Rule 37(c)(2), revised as follows:
    If a party fails to admit what is requested under Rule 36 and [] the requesting party later proves a document to be genuine or the matter true, the requesting party may move that the party who failed to admit pay the reasonable expenses and attorney fees incurred in making that proof. The court must so order unless:
    Lines 159–160: The phrase “filed a statement of discovery issues under paragraph (a)” is a little vague—consider replacing with “requested protection from discovery under subparagraph (a)(1)(D).”
    Lines 183–184: The phrase “related to a nonparty” is vague—consider replacing with “brought by or against a nonparty”
    Lines 185 & 189: replace “paragraph” with “subdivision” as per Garner, 3.2.
    Line 187: italicize “see also

  10. J.Bogart

    Re 5(b): service is effected by efiling a document, presumably because the court system sends notice and access to a copy to all other counsel. In cases that are not private, filing a paper as private (under seal) will not necessarily generate a notice from the court so other counsel may not be aware of the filing.

  11. Victor Sipos

    First point, I attempted to type comments into the website box. While drafting it, webpage transferred back to rules page, all my comments simply disappeared, and I had to spend another 30 minutes to re-type it. Perhaps best to advise folks to draft longer comments in Word and then paste them in.
    Multiple comments about Proposed Rule 37:
    1. Is the Discovery Statement truly intended only for responding parties? The Proposed Rule 37(a)(1) states that “A party or the person FROM WHOM DISCOVERY IS SOUGHT may request ….” But what if the person “from whom discovery is sought” is the party engaging in improper conduct? What if the responding party is not providing responses, or gives incomplete or evasive responses, or gives disingenuous objections. Can the person who seeks the discovery file a discovery statement? If not, what is the requesting party’s recourse, a standard motion? If a requesting party can also use the Discovery Statement, revise the rule to so indicate.
    2. Is the Discovery Statement an additional tool that can be used, or a mandatory initial mechanism to solve “any discovery dispute”? Proposed Rule 37(a)(1) states a party “may” request an order about “any discovery dispute”. But will this be enforced as the party “must” use this rule? I seem to recall that local rule version of this rule made it a mandatory pre-requisite before another discovery motion could be filed.
    3. Are Discovery Statements to be used for requesting extra discovery? Adv. Comm. Note 1 states that “Statements of discovery issues replace discovery motions.” Are they intended to replace all discovery motions or only certain enumerated motions? If this is only truly intended to replace a subset of discovery motions, please clarify.
    4. In Proposed Rule 37(a)(3), the use of 7 days is a bit confusing. I’ve never seen a 7 day time limit. The only time I’ve seen deadlines using multiples of 7 is when it’s been more than 10 days, i.e., 14, 28, etc. With a 7 day deadline, presumably the intervening weekends and holidays are not counted per Rule 6(a). This would capture two weekends if the statement is filed on Thursday or Friday. Is that intended?
    5. I’m confused by Proposed Rule 37(a)(4). It states that “unless other attachments are required by law, the party filing the statement must attach to the statement only a copy of the request for discovery or the response at issue.” But with this being a new procedure, where else in the law might other attachments be required? And if something else is required, then does that mean that filing the request or response is no longer required? I recommend: (a) make it explicit here what attachments are required; and (b) if a copy of the request or response is always required, include that in a separate sentence, not the conditional sentence that starts with an “unless.”
    6. I’m confused by Proposed Rule 37(a)(7). Is this intended to be an exhaustive list of what the court can order in response to Discovery Statements, or is it just a suggestive list? If it is an exhaustive list, then what is to be understood by Proposed Rule 37(a)(1)’s statement that Discovery Statement can be used for “any discovery dispute”? Can it be used for a dispute that does not require one of the enumerated orders currently in (a)(7)(A)-(K)? If the proposed list is not exhaustive, then I recommend adding an “other appropriate matters” option as Proposed Rule 37 (a)(7)(L), i.e., something like Current Rule 16(a)(14). Failure to do so will result in confusion about the court’s authority to issue orders.
    7. I’m confused by Proposed Rule 37(a)(8). I’m struggling to understand when costs or fees might be requested in an Discovery Statement unless it is for the type of sanctionable conduct specified in Proposed Rule 37(b)-(e). Can you clarify this in the advisory committee notes?

  12. Mark Dahl

    With the proposed change to URCP Rule 37, does this eliminate motions for protective orders all together. This would necessitate an amendment to Rule 45(e)(5) which permits a party to file a motion for protective order after being served with notice of a subpoena. Of course, as I currently read Rule 4-502, this amendment to Rule 45(e)(5) is already necessary.