March 12, 2014 Articles

Amendments Streamline FRCP 45 Subpoena Power

The changes to this misunderstood and misapplied rule seek to simplify and clarify collection procedures

By David C. Kent

The subpoena power of Federal Rule of Civil Procedure 45 has long been a powerful tool for obtaining discovery and evidence from party and nonparty witnesses. Due to its technical and abstruse provisions and wording, however, Rule 45 often has been misunderstood and misapplied, fomenting disputes about whether subpoenas issued under the rule were properly issued, served, or enforced. In the words of the Federal Civil Rules Advisory Committee, the intricacies of Rule 45 were a confusing "three-ring circus."

To overcome these problems, Rule 45 was amended effective December 1, 2013, creating a more streamlined procedure to ease the collection of evidence for deposition and trial. The amended rule now simplifies and clarifies methods for issuing, serving, complying with, and enforcing subpoenas.

Place of issuance: FRCP 45(a)

Under the amended rule, subpoenas must be issued by the court in which the suit is pending. FRCP 45(a)(2). Previously, subpoenas generally were issued from the district where performance would occur.  While an attorney could issue and sign a subpoena under the old Rule 45, he generally had to be admitted to the issuing district, which often required obtaining the services of local counsel in distant or remote locations. Under the new rule, an attorney admitted to practice in the issuing court (i.e., the court where suit is filed) can sign and issue the subpoena. FRCP 45(a)(3). Under the old rule, the form of the subpoena itself could be confusing, because it had to identify the style and location of the underlying suit in addition to being issued in the name of the local district. Under the amended rule, the subpoena will state the name of the court in which the suit is pending, which will also be the court from which it is issued. FRCP 45(a)(1)(A)(ii).

Place of service: FRCP 45(b)

The amendments now authorize nationwide service of process (not to be confused with the place of performance, discussed below). FRCP 45(b)(2). Under the previous rule, the place for serving subpoenas basically coincided with the place for performance under the subpoena, for example, the district where the deponent or witness resided or regularly worked. Discrepancies between the place of issuance, the place of performance and the place of service provided combustible tinder for many a dispute about the validity and enforceability of a subpoena. As a result, witnesses often evaded compliance based on technical defects in service. Now, the deponent or witness can be served wherever he made be found, regardless of how far it may be from his place of residence or employment or the place designated for performance under the subpoena.

Place of performance: FRCP 45(c)

The amendments left unchanged most of the rule’s provisions protecting non-parties from the burdens of complying with a subpoena and actually enhanced protections for parties. As in the old rule, non-party witnesses need only attend a hearing or deposition within 100 miles of where the witness resides, is employed, or regularly transacts business in person. FRCP 45(c). For trials, a non-party witness can further be required to attend trials anywhere in the state the witness resides, is employed or regularly transacts business, provided that it not be at “substantial expense” to the witness. FRCP 45(c)(1)(B)(ii). Subpoenas duces tecum are subject to the 100-mile limit. FRCP 45(c)(2).

As for trial testimony by party witnesses, the amended rule resolves a conflict among the courts by imposing the 100-mile or in-state geographic limits on the subpoena’s reach. The stated objective of the amendment was to overrule the result of In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006), where the court required a corporate party’s officer to travel to Louisiana for trial even though he lived and worked in New Jersey. Under the amended rule, a party will be able to ignore such a trial subpoena (whether that would be an effective trial strategy, of course, is a different question). The Advisory Committee Notes recognize, however, that this provision only relates to trials and does not apply to party depositions, where no subpoena is required. Consequently, parties and their officers, directors and managing agents can still be required to attend depositions merely upon notice and without subpoena, in which case the geographical limitations of Rule 45(c) will not apply.

Place for Enforcing Compliance: FRCP 45(d), (e), (f) and (g)

The amended rule provides that all motions related to compliance with a subpoena, whether it be a motion to quash or for protection (FRCP 45(d)(3)), to compel (FRCP 45(d)(2)(B)(i)), or to determine a claim of privilege (FRCP 45(e)(2)(B)), should initially be brought in the district where performance is to occur. This is consistent with the rule’s intention of protecting deponents and witnesses from undue burden and expense. If the witness cannot be forced to testify in remote or distant locales, then it stands to reason he need not look to a distant or remote court to rule on disputes about the subpoena with which he is served.

The amended rule is not absolute in this regard, however. It includes a new provision in 45(f) allowing the local court to transfer the motion to the court of suit if (1) the deponent or witness consents to the transfer (regardless of whether the parties agree to the transfer or not) or (2) the local court finds that “exceptional circumstances” warrant a transfer. Because the courts' "prime concern" should be on protecting nonparties from undue hardship, the Advisory Committee Notes say there should be no presumption that the issuing court is in a better position to resolve the parties’ disputes than a court located in the place of performance. Hence, the burden of proof rests upon the party seeking the transfer.

The rule does not define "extraordinary circumstances." The Advisory Committee Notes say that transfer may be appropriate when necessary to avoid disrupting the issuing court's management of the underlying litigation. For example, transfer might be necessary to avoid inconsistent results where the issuing court had already ruled on the points in dispute or the same dispute was likely to arise with similar subpoenas served in other districts. Nevertheless, the Advisory Committee Notes caution that transfer should occur "only if such interests outweigh the interests . . . in obtaining local resolution of the motion."

The court where compliance is to occur (or the court to which a motion is transferred) has authority to issue contempt orders for failure to comply with either the subpoena itself or any subsequent orders requiring compliance. FRCP 45(g). The court to which a motion is transferred can retransfer the case back to the local court for purposes of obtaining compliance. Consistent with the goal of minimizing burdens on nonparties, new Rule 45(f) authorizes counsel for the deponent or witness in the local transferring court to appear and argue in the transferee court (the court of suit from which the subpoena was issued) without the necessity of a pro hac vice admission.

Advance Notice of a Pretrial Discovery "Documents Only" Subpoena: FRCP (a)(4)

The amendments added one non-substantive, but nevertheless important, change. The 1991 amendments had created the pretrial discovery "documents only" subpoena and provided that all parties were to be given notice of service of the subpoena. The 2007 amendments required that notice be given before the subpoena was served on the witness. Experience showed, however, that parties often ignored these notice provisions, with the result that "mystery" documents could seemingly appear out of nowhere at depositions, hearings or trial, leading to disputes about the admissibility of the evidence or the need for additional discovery. To overcome these problems, the notice provision has been made more conspicuous by being moved to its own subsection, 45(a)(4), entitled "Notice to Other Parties Before Service." The issuing party now must notify all parties of its intent to serve a Rule 45 subpoena before the subpoena actually is served, but also must include a copy of the subpoena with the notice. This should allow other parties to object or serve their own subpoena for additional documents.

As originally proposed, the 2013 amendments would have made this advance notice provision applicable to all document subpoenas by striking the phrase “before trial” from the rule. This provoked opposition from the Department of Justice, which was concerned that requiring judgment creditors to give advance notice to judgment debtors of their plan to subpoena documents such as financial records would seriously hinder creditors’ collection efforts. For the Department of Justice, this included judgments ordering restitution in favor of victims of crime. Upon consideration of these comments, it was decided to retain the "before trial" qualifier. Consequently, the "advance notice" provision only applies to pretrial discovery "documents only" subpoenas and does not apply to subpoenas requiring document productions at or after trial.

Keywords: litigation, trial practice, Federal Rule of Civil Procedure, Rule 45, subpoena power, pretrial discovery

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