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Pretrial Practice and Discovery

Changes to FRCP 45 Substantially Alter Federal Subpoena Practice

By Steven C. Corhern – November 18, 2014


One of the most effective tools a trial lawyer has is the Rule 45 subpoena. But, as history has shown, disagreements over the procedural requirements of Rule 45 can add substantial time and costs to any lawsuit. The 2013 amendments to the Federal Rules of Civil Procedure made four major changes to Rule 45 that are intended to decrease such disputes and thereby streamline federal subpoena practice. First, under the amended Rule 45, a subpoena always issues from the court where the matter is pending. Second, a party can serve a subpoena anywhere in the United States in all circumstances. Third, even though Rule 45 now provides for nationwide service, a subpoena can only command compliance within 100 miles of where a person resides, is employed, or regularly transacts business in person; in certain situations, however, a subpoena for a deposition, trial, or hearing can have a somewhat longer reach. Fourth, a person opposing a subpoena must initially seek relief from the court for the district where compliance is required. However, that court can now transfer issues related to the subpoena to the court where the action is pending if (1) the subpoenaed person or entity consents, or (2) the court finds exceptional circumstances.


Issuing a Subpoena
Under the old Rule 45, the type of subpoena determined the district court from which the subpoena had to issue. For a trial or hearing, a subpoena had to issue from the district where the trial or hearing would occur. For a deposition, a subpoena had to issue from the district where the deposition would be taken. For the production of documents, a subpoena had to issue from the district where the production was to be made. The 2013 amendments to Rule 45 eliminated these various provisions. Now, all subpoenas must issue from the court where the action is pending. See Fed. R. Civ. P. 45(a)(2).


Serving a Subpoena
The old Rule 45 contained four different provisions regarding the service of a subpoena. Generally, the service of a subpoena was geographically limited to the district or state where the court issuing the subpoena was located. A party could also serve a subpoena outside the district, but only within 100 miles of the place specified for the production, deposition, trial, or hearing. The old Rule 45 also allowed for nationwide service in limited circumstances. The amended Rule 45 makes this exception the rule. Now a party can serve a domestic subpoena at any location within the United States in all circumstances.


Limits on the Court’s Subpoena Power
Under the old Rule 45, the limits on the court’s subpoena power were not always clear. The amended Rule 45 addresses this problem by adding a new subsection (c), which expressly establishes two different limits on the court’s subpoena power—one applicable to the production of documents and one applicable to depositions, trials, and hearings. See Fed. R. Civ. P. 45(c). For the production of documents, a subpoena can command production “at a place within 100 miles of where the [producing] person resides, is employed, or regularly transacts business in person.” See Fed. R. Civ. P. 45(c)(2)(A). There are no exceptions to this 100-mile rule. The rule for depositions, trials, and hearings is slightly different. Generally, a court cannot compel a person to travel more than 100 miles from “where [that] person resides, is employed, or regularly transacts business in person.” See Fed. R. Civ. P. 45(c)(1)(A). There are two exceptions. First, a court can order a party or a party’s officer to attend a deposition, trial, or hearing anywhere within the state where that person resides, is employed, or regularly transacts business in person. See Fed. R. Civ. P. 45(c)(1)(B)(i). Second, a court can order a person (not just a party or its officer) to attend a trial anywhere within the state where that person resides, is employed, or regularly transacts business in person as long as that person will not incur substantial expense. See Fed. R. Civ. P. 45(c)(1)(B)(ii).


Opposing a Subpoena


Place where compliance is required. Under the old Rule 45, a party opposing a subpoena could easily determine the court from which to seek relief. Because a subpoena issued from the court where the trial or hearing would be held, the deposition would occur, or the documents would be produced, a party sought relief from the issuing court. Under the amended Rule 45, a subpoena issues from the court where the action is pending, and can be served anywhere in the United States. Thus, the issuing court may not be the district where the deposition or production will occur. In this situation, a person or entity opposing a subpoena does not seek relief from the issuing court. Instead, Rule 45 now directs a person or entity to seek relief from “the court for the district where compliance is required.” Fed. R. Civ. P. 45(d) & (e).


It is not exactly clear from the language of the amended rule how one determines “where compliance is required.” The new subsection (c) is titled “Place of Compliance,” but that subsection only addresses the geographical limits on a court’s power. It does not specify “where compliance is required” for determining the court to which a person or entity opposing a subpoena should turn for relief. Rule 45(a)(1)(A)(iii) may provide the answer. This provision requires each subpoena to specify the place where the person must produce the documents or appear for the deposition, trial, or hearing. Arguably, this specified location is the place “where compliance is required.”


However, this interpretation could produce bizarre results. For example, in an action pending in Atlanta, Georgia (located in the Northern District of Georgia), a party might specify Birmingham, Alabama (located in the Northern District of Alabama) as the location for the deposition of a person who lives, works, and only regularly transacts business in Montgomery, Alabama (located in the Middle District of Alabama, but fewer than 100 miles from Birmingham). Birmingham is not objectionable under the new Rule 45(c) because it is within 100 miles of Montgomery—the place where the deponent resides, is employed, and regularly transacts business in person. Yet, the action is not pending in the Northern District of Alabama and the deponent does not reside, work, or regularly transact business there. Thus, it seems odd that this person would have to seek relief from the Northern District of Alabama. Nonetheless, the new rule suggests this result.


Transfer to the court where the action is pending. The 2013 amendments to Rule 45 also added a new subsection (f). This subsection authorizes the court where compliance is required to transfer a dispute related to a subpoena to the court where the action is pending in two situations. First, a court may transfer a dispute when the person or entity subject to the subpoena consents to the transfer. Second, a court may transfer a dispute upon a finding of “exceptional circumstances.” The advisory committee note makes clear that “exceptional circumstances” are very rare and that a court’s primary “concern should be avoiding burdens on local nonparties subject to subpoenas.” See Fed. R. Civ. P. 45 advisory committee notes (2013 amendment). The note also places “the burden of showing that [exceptional] circumstances are present” on the proponent of the transfer. Finally, the note suggests that a transfer is appropriate only when a dispute might impede the management of the underlying litigation by the court where the action is pending.


Due to this new authority to transfer issues related to a subpoena, the 2013 amendments to Rule 45 also added a new subsection (g), which preserves a district court’s authority, formerly found in subsection (e), to punish a party for disobeying a subpoena or an order to comply with a subpoena. The new subsection (g) also provides that, if an issue related to a subpoena is transferred under Rule 45(f), then a failure to obey an order from the court where the action is pending is contempt of both that court and the court where compliance is required.


This article has briefly identified and explained the major changes to Federal Rule of Civil Procedure 45. However, as the author’s civil procedure professor put it on the first day of law school, there is no substitute for actually reading the rule. Accordingly, all practitioners should carefully review the amended Rule 45 before issuing (or opposing) a subpoena in federal court.


Keywords: litigation, pretrial practice, discovery, subpoena, 2013 amendments, FRCP amendments, Rule 45


Steven C. Corhern is an associate with Balch & Bingham LLP in Birmingham, Alabama.


 
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