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June 10, 2014 Articles

Rule 45 and You: The Young Lawyers' Guide to Federal Subpoenas

By David L. Schwan

For years, lawyers who dealt with federal subpoenas were plagued by complex guidelines for their issuance and compliance. Rule 45 often required subpoenas to be issued by the court where compliance was made, not by the court handling the underlying litigation. Thus, when a party needed documents or testimony from multiple sources around the country, subpoenas were issued by many courts with differing rules on service and enforcement. This created substantial headaches for lawyers and inconsistent rulings for clients. Then, after years of studying the issue, the Rules Committee amended Rule 45, with the changes taking effect on December 1, 2013.

The New Procedures in Rule 45
The Rules Committee explained that its goal in reforming federal subpoena practice was to “clarify and simplify” Rule 45—and that, they did. For purposes of this article, the clarifications fall into three analytical categories: (1) issuance, (2) service, and (3) compliance.

Issuance. Parties formerly were required to issue subpoenas from different courts, depending on where the deposition, production, or inspection would take place. This often meant that the court in which the underlying action was pending, which may be hundreds or thousands of miles away from the documents or testimony sought, was different from the issuing court. But under the new rule, the issuing court is always “the court where the action is pending.” Fed. R. Civ. P. 45(a)(2) (amended 2013). This eases administrative burdens for attorneys who no longer need to issue subpoenas under multiple court captions; now the caption will be universal.

Another revision that simplifies matters is the definition of who may issue a subpoena. Previously, the clerk of the court could sign a blank subpoena, or an attorney could sign as an officer of (a) the issuing court or (b) the court where the underlying action is pending, if the party seeks documents and deposition testimony. Under the amended rule, the clerk can still issue a subpoena as before, but now an attorney who signs the subpoena need only be authorized to practice in the issuing court, which is sensible given that the issuing court will always be where the underlying action is pending. Fed. R. Civ. P. 45(a)(3) (amended 2013).

Service. The new rule makes two major changes regarding subpoena service. First, notice of service has always required to the opposing party in the case, to give that person an opportunity to object in appropriate cases, but the new rule makes that requirement prominent and harder to miss. Fed. R. Civ. P. 45(a)(4) (amended 2013). The revised rule also makes clear that the issuing attorney must provide opposing parties with a copy of the subpoena itself, not just mere notice of its service. Second, the old rule had a complicated set of service instructions for the subpoena target depending on the location of the issuing court, the place of compliance, and even state law. The new rule dramatically streamlines the rule by allowing for nationwide service. Fed. R. Civ. P. 45(b)(2) (amended 2013). Thus, deponents or company requested to provide documents cannot object to service irregularities when they are served within the United States.

Compliance. On the compliance front, the new rule makes three major changes. First, the rule makes clear that a non-party may be compelled to testify at a trial within the same state as the issuing court, but only if compliance would not cause the non-party to incur “substantial expense.” Fed. R. Civ. P. 45(c)(1)(B)(ii) (amended 2013). Note that this cost exception is not afforded to a party’s officers, who may be compelled to testify at a trial within the same state as they live or work. Fed. R. Civ. P. 45(c)(1)(B)(i) (amended 2013). That change also prohibits a court from requiring party officers to testify at a trial in another state and beyond 100 miles from where they live or work. This change overrules case law under the old rule in which courts sometimes ordered a party’s out-of-state officer to testify at trial. See, e.g., In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664 (E.D. La. 2006).

Second, an objecting non-party formerly challenged the subpoena in the issuing court, which tended to be nearby. Now, with the issuing court often in a distant locale, the affected person must file an objection or motion to quash (a “subpoena-related motion”) with the district court where compliance is required. Fed. R. Civ. P. 45(d) (amended 2013). This change makes sense to ensure that non-parties, who may have no connection with the underlying litigation, can file their objections—at least initially (see below)—in a convenient court, which may lessen their legal expenses if their attorney must appear and defend their rights.

Third, the new rule allows a court to transfer a subpoena-related motion to the issuing court in two circumstances: (1) if the subpoenaed party consents to transfer; or (2) when the court finds “exceptional circumstances.” Fed. R. Civ. P. 45(f) (amended 2013). The rule purposely leaves that term undefined, but the committee note explains that there may be instances in which the issuing court should address the matter to avoid inconsistent rulings or for other case-management reasons. Nevertheless, each court should remember the primary concern of reducing each non-party’s burdens, insomuch as possible.

These three areas of revision—issuance, service, and compliance—simplify Rule 45 greatly, but they also provide new areas of thought for young lawyers.

Developing and Responding to Federal Subpoenas under the Amended Rule
When I began as a young lawyer in 2006, Rule 45 contained many traps for unwary attorneys who did not read every section nor understand each nuance. The new and improved Rule 45 reduces many issuance and compliance burdens, but lawyers must still keep certain things in mind as they draft and respond to federal subpoenas.

Issuing federal subpoenas. The new rule lessens certain procedural concerns for the issuance of federal subpoenas. First, because the issuing court is always the same court where the action is pending, you can draft a full set of subpoenas under a single caption. Fed. R. Civ. P. 45(a)(1)–(2) (amended 2013). This may not seem like a big change, but if you were a party in an aviation case and needed discovery from multiple aircraft suppliers, for example, you used to need a different caption for each district where a subpoena was served. The new rule avoids that issue altogether. Second, under Rule 45’s nationwide service provision, the subpoena target must choose the proper court to hear subpoena-related motions. You need not worry about the place of service for a deponent or producing non-party. Fed. R. Civ. P. 45(b)(2) (amended 2013). Remember, though, that Rule 45(a)(4) requires the issuing party to provide notice of service, with a copy of the subpoena attached, to every other party in the litigation. Young lawyers should emphasize this change to senior attorneys, as the Rules Committee included it to emphasize the need for providing notice to all parties, a requirement that many lawyers previously ignored.

The new rule also raises interesting compliance and enforcement concerns. As an issuing attorney, you and your colleagues should remember that a non-party can be compelled to provide trial testimony anywhere within the state where the issuing court sits, as long as the non-party does not incur “substantial expense.” Fed. R. Civ. P. 45(c)(1)(B)(ii) (amended 2013). That term is undefined and certainly will vary with the non-party’s relative resources, but you may want to advise your supervising attorney, client, or both to consider covering certain non-party witness expenses to mitigate the effects of an objection under this provision. On the other hand, in the case of a party officer, he or she may no longer be compelled to travel more than 100 miles outside his or her home state to testify at trial. In that case, you may want to notice a party officer’s deposition under Rule 30, as that rule does not contain Rule 45’s geographic restrictions.

Lastly, you should be ready to move for transfer of a subpoena-related motion to the issuing court managing your underlying case, particularly when you serve several similar subpoenas at once. Fed. R. Civ. P. 45(f) (amended 2013). You will have an uphill battle to show “exceptional circumstances” for transfer, but this is possible if, for example, the documents you need are outcome-determinative or raise issues that would benefit from a single court’s consideration. Be prepared to argue these points, and also to discuss the non-party’s relative resources. That is, you are far likelier to win a transfer motion if the non-party is a large commercial enterprise in Houston rather than a rural non-profit in east Texas.

Responding to federal subpoenas. As was the case under the old rule, you should consider the costs of compliance and likelihood of success before bringing a subpoena-related motion.

When your client receives a broad subpoena for testimony or documents, consider calling the attorney representing the issuing party, explain your position, and negotiate common-sense limitations to reflect your client’s resources and other compliance burdens. Regarding a trial subpoena, your non-party client can only be required to appear within 100 miles or farther within the state if the attendance costs are not “substantial.” Fed. R. Civ. P. 45(c)(1)(B) (amended 2013). Again, if you have grounds to object based on your client’s resources and the time involved in the requested travel, the substantial-expense exception may give you some negotiating room on cost coverage.

The likelihood of success is, of course, another important factor in any discovery dispute. Remember that under the new rule, the subpoena-related motion may be transferred to the issuing court with your client’s consent or in “exceptional circumstances.” Fed. R. Civ. P. 45(f) (amended 2013). Your client’s consent may not be forthcoming in most cases if the issuing court is far away, but it may be more likely if the client believes that the issuing court is a friendlier forum for its interests. Moreover, if you do not consent, you may have to argue against the presence of exceptional circumstances, but you have the advantage of representing the non-party whose interests are given heavy weight in the analysis. You should emphasize the burden imposed and your client’s relative resources to avoid a potential transfer. If, however, you lose the transfer battle, the new subpoena rule allows you to appear in the issuing court, and the Rules Committee encourages courts to permit telephonic appearance by the non-party’s counsel to mitigate potential travel burdens.

The Rules Committee made many much-needed revisions to Rule 45 in 2013. Whereas the old rule created substantial confusion as to the requirements for the issuance, service, and enforcement of federal subpoenas, the new rule minimizes these issues and promotes the underlying goals of non-party discovery. As a young attorney, you should review the rule and understand how to advise supervising lawyers and your clients going forward. Issuing a subpoena is simpler in many ways, but the burden on non-parties remains a paramount consideration for all courts. As is true of many of the rules and their enforcement mechanisms, negotiation among affected persons is key to resolving disputes, or at least narrowing the issues for the court to resolve. This practical consideration is a central trend for the Federal Rules, away from the gotcha tactics that plagued courts in the past.

Keywords: litigation, mass torts, FRCP 45, Rules Committee, subpoenas

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