October 09, 2014 Articles

Revised Rule 45: Making "Open Court" Only a Video Link Away

By Michelle M. Rutherford

Much has been written about recent amendments to Federal Rule of Civil Procedure 45. One seemingly simple amendment was to subsection (b)(2), which formerly allowed for service of a subpoena outside the district of the issuing court only in certain circumstances. The rule now simply reads: “A subpoena may be served at any place within the United States.” Fed. R. Civ. P. 45(b)(2). Clearly a simplification of the process, the change was intended to “remov[e] the complexities prescribed in prior versions.” Fed. R. Civ. P. 45(b) advisory committee’s note (2013).

Allowance for nationwide service of a subpoena from the court where the case is pending removes the prior difficulty of placing each out-of-district subpoena under the issuing court’s caption and other unnecessary details. Interestingly, however, at least one court has used the provision of nationwide service to support its order requiring out-of-state witnesses to appear live, “in court,” via contemporaneous video transmission instead of by previously taken video depositions and even though they were undisputedly outside the court’s Rule 45 subpoena power.

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