December 13, 2012 Article

FRCP 45 Proposed Amendments: Changing Subpoena Procedures

Rule 45 has several ambiguities and quirks that can often be confusing

by Katherine S. Kayatta

Proposed changes to Federal Rule of Civil Procedure 45 may streamline subpoena practice, allowing litigators to issue subpoenas from the district in which the litigation is pending, rather than where the targeted documents or person are to be found, and to transfer motions to quash and for protective orders to that same court under limited circumstances. These and other changes were recently approved by the Judicial Conference of the United States and are now under review by the U.S. Supreme Court.

For litigators who practice in the federal courts, Rule 45 is frequently encountered and used by attorneys seeking to issue subpoenas and by attorneys assisting their clients in quashing or otherwise disputing subpoenas. As practitioners are well aware, Rule 45 has several ambiguities and quirks that can often be confusing. Moreover, as the Civil Rules Advisory Committee noted in its report on the proposed changes, since the 1991 amendments to Rule 45, issues have emerged that have not been uniformly addressed by federal courts throughout the country, only adding to inconsistent practice. The proposed amendments to Rule 45 have been specifically designed to address these issues and allow for increased uniformity in the federal courts.

Although the amendments touch on various subsections of Rule 45, there are three significant proposed amendments that will directly affect routine practice in federal courts: (1) a change in the definition of the “issuing court,” (2) a change in the forum in which a party can challenge a subpoena, and (3) a change regarding how far corporate officers will be required to travel for deposition.

Issuance of Subpoenas—Where Is the “Issuing Court”?

Under the current rule, the “issuing court” of a subpoena is defined in Rule 45 as the court where the requested discovery would take place. Thus, if Company A and Company B are litigating a case in the U.S. District Court for the District of Massachusetts and Company A desires to subpoena an individual residing in New York, the issuing court for purposes of the subpoena would be the applicable New York federal district. The proposed amendment would define the “issuing court” as the court where the action is pending. Accordingly, in the example above, Company A would now issue its subpoena from the Massachusetts federal district court. The court located in the federal district where the discovery would take place, known as the “local court,” would become involved only if a dispute arose as to compliance with the subpoena. In that case, an action would be filed with the local court, which may have the authority, under the proposed amendments, to transfer the dispute to the issuing court.

Takeaway for Practitioners: If Rule 45 is amended as currently proposed, subpoenas will now issue from the court where the action is pending, rather than the court where the discovery is sought.

Transfer of Subpoena-Related Disputes—Where Do I Dispute a Subpoena?

Under the current rule, a third-party subpoena must be challenged in the federal court where the testimony or document production is to take place—usually the third party’s home district. For example, if your California client is served with a subpoena to produce records in connection with litigation pending in federal court in Texas, the California federal district court would rule on disputes regarding the subpoena. However, under the proposed changes to Rule 45, it will be possible for the plaintiff or the defendant in the underlying lawsuit to transfer disputes about third-party subpoenas to the federal court where the lawsuit is pending. In the above example, the parties might try to move the dispute over the subpoena to the Texas federal court. However, transfer would be possible only under limited circumstances: when the subpoenaed third party consents or under “exceptional circumstances.” The proposed amendment recognizes that the court presiding over the lawsuit is oftentimes better able to handle disputes about the scope of third-party discovery because that court will have knowledge of the issues central to the case. The third-party consent standard takes into account avoiding undue burden on the local nonparty witness. Previously, prior to the public comment period, the proposed amendment included a requirement that the parties consent to the transfer. After a review of public comments, the proposed amendment was revised to eliminate that requirement.

Takeaway for Practitioners: If Rule 45 is amended as currently proposed, a party can seek to transfer any third-party subpoena dispute to the court where the action is pending, so long as the subpoenaed party consents or there are exceptional circumstances. This will likely provide for a more efficient adjudication of third-party subpoena disputes because, if a dispute is transferred, the court will be familiar with the issues of the case and the necessity of the discovery sought. Courts in other jurisdictions, which are divorced from the underlying action completely, would not be forced to make a decision without much context.

Geographical Limitations—Where Will My Client Have to Testify?

When corporate officers are served with a deposition subpoena, they routinely inquire as to where the deposition will occur. Under the current Rule 45, a corporate officer cannot be compelled to travel more than 100 miles to testify at a deposition. Courts, however, disagree about whether the 100-mile rule applies when corporate officers of a party to the action are subpoenaed to testify at trial.

The proposed amendment seeks to clarify this point and take a uniform position on the 100-mile rule’s applicability. Under the proposed amendments, any person, including corporate officers of a party to a lawsuit, can only be compelled to testify at trial within 100 miles of where they reside, are employed, or regularly transact business, orwithin the state where they reside, are employed, or regularly transact business, provided that it does not cause them substantial expense. Essentially, the proposed rule provides enhanced protection for senior officers of parties.

Takeaway for Practitioners: If Rule 45 is amended as currently proposed, senior corporate officers will enjoy enhanced protection and cannot be compelled to testify at trial beyond specific geographical limitations.

Status of the Amendments

In 2011, the Civil Rules Advisory Committee issued a report seeking public comment on proposed amendments to Rule 45, which has not been revised since 1991. After reviewing comments from the public, the Committee on Rules of Practice and Procedure revised the proposed amendments and submitted them for full Judicial Conference review. The Judicial Conference issued a report in September 2012, summarizing several changes to the proposed amendments contained in the Civil Rules Advisory Committee report based on the public comments received and recommendations from the Committee on Rules of Practice and Procedure. The proposed amendments have now been submitted to the U.S. Supreme Court for review and could very well be adopted in the near future.

The proposed amendments touch on some additional subsections of Rule 45, for example, clarifying that giving “notice” to other parties before serving a subpoena for documents requires that the notice include a copy of the subpoena. However, the three areas discussed above are ones in which attorneys will notice significant changes that will affect daily practice if the rule is amended.

Keywords: real estate litigation, corporate officers, discovery, witnesses, motion to quash, protective order

Katherine S. Kayatta is an associate in the Boston, Massachusetts, office of Robinson & Cole LLP.

Copyright © 2012, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).