March 01, 2014

New Rule 45

John M. Barkett

Rules within the Federal Rules of Civil Procedure are amended every so often. The e-discovery amendments that went into effect on December 1, 2006, for example, involved additions to certain rules and word changes in other rules. This paradigm was changed with the major overhaul of the subpoena rule—Rule 45—that went into effect on December 1, 2013.

Old Rule 45 allowed lawyers to slap a caption on a subpoena for the federal court district in which a witness resided and have it served, allowed for challenges to be made in that district, provided minimal notice requirements, prohibited transfers of a motion to quash a subpoena to the court where an action is pending, and created a case law split over the ability of a court to require a corporate officer to testify in court when the corporate officer was not within the subpoena power of the court where an action was pending.

New Rule 45 has been rewritten in significant ways. It will take some adjustment, but lawyers should find it simpler to follow even if it will present its own challenges. The amendments in new Rule 45 fall into four categories: simplification, notice, transfer, and what is referred to as the “Vioxx issue.”

Simplification. Simplification takes on three main forms in new Rule 45. First, service of process is now nationwide. Under new Rule 45(b)(2), “A subpoena may be served at any place within the United States,” conforming Fed. R. Civ. P. 45 to Fed. R. Crim. P. 17(e), which also provides for nationwide service. As a result of this change, all references to service allowed under state law have been eliminated in new Rule 45. In making this change, the Advisory Committee was merely acknowledging the impact of the existing text in Rule 45, which allows a lawyer to serve a subpoena on a person in the name of the district court where the subpoena-recipient is located (effectively, nationwide service).

Second, and more significantly, the “issuing court” is now the court where the action is pending. The caption that appears on a subpoena will no longer be from the district where the witness is located. Specifically, new Rule 45(a)(2) provides: “A subpoena must issue from the court where the action is pending.”

This change will require adjustment in the practice of seasoned lawyers. But there is at least one significant advantage to this change. If a party had to serve subpoenas in twenty-five districts in the United States, under old Rule 45, the subpoenas would have twenty-five different captions. Under new Rule 45, they only have to have one: that of the court where the action is pending.

There is, however, a risk of confusion to the subpoena-recipient. That person or entity will see the name of the issuing court and may be flummoxed. Take a subpoena recipient in Seattle, Washington, who is served with a subpoena from the Southern District of Florida. If that person has an objection to the subpoena or wishes to move to quash the subpoena, what is that person to do?

The subpoena notice form should explain to the witness that the place of compliance, or the “enforcement court,” remains the court in whose district the witness is located. The witness should be able to determine from the subpoena form that the witness can still challenge the subpoena by motion without having to travel to the court where the action is pending with one important exception that is discussed below.

In the “simplified” Rule 45, existing Rule 45(c)(1) would be renumbered Rule 45(d)(1). Instead of saying that the “issuing court” has the obligation to enforce the duty of a subpoena-issuer to take reasonable steps to avoid imposing undue burden or expense on a person subject to a subpoena, that role is now given to the court “for the district where compliance is required under Rule 45(c).”

Finally, simplification results in capturing in new Rule 45(c) all compliance requirements. Rule 45(c)(1) provides that a subpoena “may command a person to attend a trial, hearing, or deposition only” in two places depending upon the type of witness. Under Rule 45(c)(1)(A), the first place is “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Where, however, the person is a party or a party’s officer, or is commanded to attend a trial and would not incur substantial expense, then the place of compliance is “within the state where the person resides, is employed, or regularly transacts business in person.” With these changes, a subpoena served on a person while traveling away from home still may only command a person to attend a trial, hearing, or deposition at the locations set forth above.

New Rule 45(c)(2)(A) discusses the place of compliance for documents, electronically stored information, or tangible things: “a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.” Unsurprisingly, under new Rule 45(c)(2)(B), the place of compliance for a subpoena seeking the inspection of premises is the place to be inspected.

Under renumbered Rule 45(d)(2)(B)(i), in a conforming change, motions to compel production or inspection under a subpoena are now filed in the court “for the district where compliance is required under Rule 45(c)”—the new name for the old “issuing court.” The same change was made under renumbered Rule 45(d)(3)(A) for filing of a motion to quash or to modify a subpoena.

Notice. Notice to other parties is given more prominence under new Rule 45. As a reminder, old Rule 45(b)(1) provided, “If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.”

Not many lawyers followed this practice, however, according to reports from many lawyers who provided information to the Advisory Committee on the need for reform of Rule 45.

As a result, notice was moved into Rule 45(a) as new subparagraph (4), and lawyers are required to provide a copy of the subpoena to each party: “If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.”

The Advisory Committee considered but rejected an additional clause that would have required lawyers also to provide a copy of documents or electronically stored information that was produced in response to a subpoena. Lawyers usually stipulate to this practice, and the Advisory Committee felt that as long as lawyers received a copy of the subpoena they could protect themselves by following up as might be necessary.

Transfer. In what is a major addition to Rule 45, as alluded to earlier, the compliance court now has the ability to transfer to the issuing court (again, that is now the court where the action is pending) a motion to quash or compel production if consent of the person subject to the subpoena or “exceptional circumstances” exist(s). To address the professional conduct concern that the lawyer for the witness may not be licensed to practice in the issuing court, new Rule 45(f) specifically authorizes that lawyer to appear as an “officer” of the issuing court. And then to enforce any order issued by the issuing court, the “order” may be transferred “to the court where the motion was made” (i.e., the compliance court). New Rule 45(f) provides in full:

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 circumstance. 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 Advisory Committee note to Rule 45(f) emphasizes the point that transfers should be, and are expected to be, rare. In the Note, the Advisory Committee explains that the burden of showing “exceptional circumstances” is on the proponent of the transfer. In determining whether this burden is met, the compliance court is instructed to show concern for avoiding burdens on local nonparties and not to assume that the issuing court is “in a superior position to resolve subpoena-related motions.” The Note then contains examples of circumstances where a transfer might make sense and encourages judges in the issuing and compliance courts to consult where appropriate:

In some circumstances, however, transfer may be warranted in order 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. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion. Judges in compliance districts may find it helpful to consult with the judge in the issuing court presiding over the underlying case while addressing subpoena-related motions.

Because of the potential costs to the witness to address a subpoena-related motion in the issuing court, the Note also encourages judges to “permit telecommunications methods to minimize the burden a transfer imposes on nonparties, if it is necessary for attorneys admitted in the court where the motion is made to appear in the court in which the action is pending.”

Rule 45(g) and Rule 37(b)(1) were both amended to provide that disobedience of an order enforcing a subpoena after transfer to the issuing court represents contempt of the issuing court and the compliance court.

The Vioxx Issue. Finally, the “Vioxx issue” was resolved.

Old Rule 45 had been interpreted by a district court to permit an order requiring an officer at Merck & Co. who resided in New Jersey to testify at an MDL trial in New Orleans despite the geographical limits contained in old Rule 45. In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664 (E.D. La. 2006). New Rule 45(c) reverses the holding in Vioxx. As noted above, it requires a “party or the officer of a party” to appear only within the state where the party or officer “resides, is employed, or regularly transacts business in person.”

One change to Rule 45 that some sought but was not made relates to what has been renumbered Rule 45(d)(2)(B). It still provides that objections to a subpoena must be served “before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Because the time specified for compliance with the subpoena may be longer than fourteen days, unwary subpoena-recipients may think that there will be time to object up to the date of compliance. While the case law does contain some exceptions, many cases have upheld claims of waiver of objections to a subpoena where the time of compliance exceeded fourteen days but objections were not made within fourteen days. That trap remains under new Rule 45.

This summary hits the highlights of the Rule 45 amendments. There is never, however, any substitute for reading the actual rule and the notes accompanying the rule. And while there may be some initial confusion about the “issuing court” and the “compliance court,” revised subpoena forms and good communication should eventually allow new Rule 45 to operate seamlessly and effectively.

John M. Barkett

Mr. Barkett is a partner in the Miami office of Shook, Hardy & Bacon and a member of the editorial board of Natural Resources & Environment.