Taking the Fun Out of Rule 45

After 21 years, perhaps it’s about time. This past June, the Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed amendments to the Judicial Conference for Rule 45 of the Federal Rules of Civil Procedure (subpoena). These will be the first substantive amendments to Rule 45 since 1991.

The Judicial Conference approved those changes at its September 2012 meeting, along with other rule changes recommended by the Standing Committee. The Judicial Conference will now forward the package to the Supreme Court, which will have until May 1, 2013, to approve and transmit the proposed rule changes to Congress. Absent congressional action thereafter, the rule changes will become effective on December 1, 2013.

There are five principal revisions. (Red-lined and clean versions of the proposed rule appear starting at page 85 of the report.) First, no longer will Rule 45 require that a deposition subpoena issue “from the court for the district where the deposition is to be taken,” or that a “documents only” subpoena issue “from the court for the district where the production or inspection is to be made.” Under proposed Rule 45(a)(2), “a subpoena [for testimony or documents only] must issue from the court where the action is pending.”

Second, a new subsection (a)(4) emphasizes that “documents only” subpoenas must be served on each party “before the subpoena is served on the person to whom it is directed.” While current Rule 45(b)(1) requires notice, the Standing Committee found that it has frequently been ignored. The amendment not only highlights the notice requirement, but it also requires service of the subpoena itself, giving parties a preview of its substance before service on the deponent.

Third, service of process (Rule 45(b)(2)) is now nationwide, as it is in federal criminal cases. Fourth, Rule 45(c)(1) clarifies that a trial subpoena, deposition subpoena, and documents-only subpoena are returnable only within the state or within 100 miles of where the witness lives, works, or regularly does business, even if the witness is a party or a party’s officer, or, in the case of a trial subpoena, elsewhere if such witness would not incur “substantial expense.” Of course, as observed in the Committee Note, deposition subpoenas are not necessary for parties or their officers, directors, or managing agents, and the geographical limitations do not apply to such subpoenas.

And last, the “court where compliance is required,” while the forum of first resort on any motion relating to the subpoena, may transfer the motion to the issuing court pursuant to Rule 45(f) if the witness consents or if the court finds “exceptional circumstances.” 

The proposed modifications to Rule 45 are eminently sensible. Still, abrogation of the current rule—with its vast potential for procedural mischief-making—may be viewed as a loss (with tongue only slightly in cheek) among those who find perverse delight in complicating discovery and confounding adversaries. In the interests of candor, I must confess that years ago when I began practicing law, I was in that camp, although I believe I have since matured, at least somewhat.

At considerable expense, a number of Washington lawyers had traveled to Michigan to take the deposition of a non-party witness. Just before the deposition started, I got a call from my paralegal in Washington alerting me to an anomaly he had spotted in the subpoena, which had been served by adverse counsel. It was issued by the clerk of the Eastern District of Michigan, but the deposition was noticed for the Western District. Before commencement of the deposition, I put my objection on the record with an exaggerated arched eyebrow aimed at the witness and his counsel. A heated argument ensued among all of the lawyers, much to my delight.

The upshot was that the witness, who was reluctant to appear in the first place, declined to testify. So we all packed our bags and returned to D.C. I forget whether my adversary ever got around to noticing that deposition properly. But I thought then, and still believe, that this seemingly expensive tactic, when coupled with other frustrating maneuvers that the rules then countenanced, intangibly aided in reducing the ultimate settlement value of the case. Alas, those fun days are gone, as the drafters at long last have simplified the rule and rationalized the subpoena process.