New Rule 45 – The Federal Subpoena Rule

   On December 1, 2013, several amendments to Rule 45 of the Federal Rules of Civil Procedure went into effect.  There are four significant changes:        

   (1)  A subpoena must issue from the court where the action is pending.

   Formerly, to request a third party’s attendance at a trial or deposition or to command the production/inspection of documents in a third party’s possession, Rule 45(a)(2) required the subpoena to be issued from the court for (A) the district where the hearing or trial is to be held, (B) the district where the deposition is to be taken, or (C) the district where the production/inspection of documents is to be made.  New Rule 45(a)(2) simplifies the issuance process by mandating that all subpoenas be issued from the court where the action is pending.

   (2)  Nationwide service is permitted.

   Prior to the recent amendments to Rule 45, a subpoena could be served only within (A) the district of the issuing court, (B) 100 miles of the place specified for deposition, hearing, trial, production, or inspection, (C) the state of the issuing court if allowed by that state’s statutes or court rules, or (D) upon motion, as authorized by the court for good cause or if permitted by a federal statute.  New Rule 45(b)(2) provides that a subpoena may be served at any place within the United States.   

   (3)  A subpoena cannot command a person to produce documents or testify beyond 100 miles of where the person resides, is employed, or regularly transacts business.

   New Rule 45(c) specifies where a third party may be commanded to comply with a subpoena.  Subsection (c)(1), as amended, states that “[a] subpoena may command a person to attend a trial, hearing, or deposition only as follows: (A) within 100 miles of where the person resides, is employed, or regularly transacts business; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person (i) is a party or party’s officer; or (ii) is commanded to attend a trial and would not incur substantial expense.”  This amendment resolves a conflict that arose among federal courts (commonly referred to as the Vioxx issue) over the question whether a party or party’s officer may be compelled by subpoena to travel more than 100 miles to attend trial.  The revised Committee Notes make clear that new  Rule 45(c)(1) does not affect existing law on the location for a deposition of a party or party’s officer, director, or managing agent, for which a subpoena is not needed.

   New Rule 45(c)(2) states that “[a] subpoena may command: (A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and (B) inspection of premises at the premises to be inspected.”  Under former Rule 45, the place of production or inspection was not specified.  The revised Committee Notes point out that this amendment does not prohibit the parties from agreeing on the place of production, even if it is outside the geographical limitations of Rule 45(c)(2).

   (4)  Subpoena-related motions may be heard in the compliance court or, under exceptional circumstances, may be transferred to the issuing court.

   Subsection (f) of Rule 45 is new in its entirety.  It states as follows:

(f)  Transferring a Subpoena-Related Motion.  When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.  Then, if the attorney for a person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court.  To enforce its order, the issuing court may transfer the order to the court where the motion was made.

   The revised Committee Notes to this subsection are key—they provide specific guidance on how courts may determine whether “exceptional circumstances” warranting transfer exist.  For example, transfer may be warranted to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts.

The entire text of new Rule 45 is published here:

http://www.uscourts.gov/RulesAndPolicies/rules/current-rules.aspx.

The new subpoena forms (AO 088, AO 088A, and AO 088B) can be found here:

http://www.uscourts.gov/FormsAndFees/Forms/CourtFormsByCategory.aspx

   We invite you to learn more about these amendments to Rule 45, and how they will affect best practices for responding to third-party subpoenas, at KMK’s Legal Update Seminar to be held on December 11, 2013, at the Hyatt Regency Cincinnati, 151 West 5th Street, Regency South Foyer, 3rd Floor.  To register, please visit http://www.kmklaw.com/news-events-226.html.

Tags: Subpoena

Blog Contact:  Joseph Callow, Litigation Partner
jcallow@kmklaw.com or 513.579.6419

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