Say good-bye to those anxious readings (and re-readings) of Rule 45. After twenty-two years, Rule 45 is getting a makeover. This past September, the Judicial Conference of the United States approved the first substantive amendments to Rule 45 since 1991. The proposed amendments are now before the Supreme Court, which has until May 1, 2013, to approve and transmit the proposed rule changes to Congress. Absent congressional action, these revisions will become effective on December 1, 2013.
After a multiyear study conducted by the Civil Rules Advisory Committee, several specific changes are proposed to Rule 45 in an attempt to simplify federal subpoena practice. (See Committee on Rules of Practice and Procedure (June 2012); Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure (Sept. 2012).
First, all subpoenas, for documents, testimony, or both, will issue from the court where the action is pending. No longer will attorneys need to determine the appropriate court from which the subpoena should issue. Currently, the determinative factor in deciding which court should be the issuing court is what is being commanded of the witness (i.e., production of documents or things, attendance, or both). If the subpoena commands attendance at a deposition, then Rule 45(a)(2)(B) controls, and the subpoena must issue “from the court for the district where the deposition is to be taken.” If the subpoena commands production or inspection and is “separate from a subpoena commanding a person’s attendance,” then Rule 45(a)(2)(C) controls, and the subpoena must issue “from the court for the district where the production or inspection is to be made.” And if the subpoena commands both attendance and production of documents, then the jurisdiction of the deposition controls. Got all that? The proposed revisions to Rule 45(a)(2) simplify the analysis: “A subpoena must issue from the court where the action is pending.”
Second, Rule 45’s notice requirement finally gets some attention. Under the newly proposed subsection (a)(4), documents-only subpoenas must be served on each party before the subpoena is served on the person to whom it is directed, and the notice must include a copy of the subpoena. The purpose of this amendment is to highlight the notice requirement, which is often ignored, and to give the requirement some substance. Requiring attorneys to include a copy of the subpoena assists other parties in knowing what is being sought and evaluating whether any objections should be asserted.
Third, under proposed subsections (b)(2) and (c), service of process will be extended nationwide (alleviating the burden of identifying and retaining local process servers), but the witness is required to comply only within the state or within 100 miles of where the witness lives, works, or regularly does business in person. The proposed amendments are not intended to restrict the parties’ ability to agree on a place of production.
Finally, the newly added subsection (f) authorizes the transfer of subpoena-related motions (e.g., motions to quash, motions to compel, motions for protective order) from the compliance court to the issuing court (i.e., the court where the underlying action is pending). The primary concern is still protection of the person subject to the subpoena. Subsection (f) merely simplifies the process of these “satellite litigations.” Specifically, the court where compliance is required may transfer the motion to the issuing court if the nonparty consents to the transfer, or if the court finds “exceptional circumstances” warrant transfer to the issuing court.
These proposed modifications are a practical response to the problems of compliance with Rule 45 and to the litigation that occurs in districts far removed from the district in which the case is pending. As millennial discovery practice becomes more and more complicated, any attempt to simplify the process is welcome. If approved, these amendments will significantly refine federal subpoena practice.