YourABA December 2012 Masthead

Alert: Impending changes to Rule 45 of the Federal Rules of Civil Procedure

Earlier this year, amendments were proposed to Rule 45 of the Federal Rules of Civil Procedure. Barring any action from the Supreme Court or Congress, several changes will go into effect Dec. 1, 2013.

In the Sound Advice podcast “Rule 45 of the Rules of Civil Procedure,” John Barkett, a partner at Shook, Hardy & Bacon in Miami, outlines the changes. Barkett is a member of the Civil Rules Advisory Committee for U.S. courts, which recommended the amendments to the Standing Committee. “There are four significant changes,” he says, adding a warning that his brief overview “is no substitute for actually reading the amended text or the advisory committee note that accompanies the amended text.”

The first change involves notice. “Currently, Rule 45 requires a subpoena issuer to give notice of the subpoena to other parties, but, in fact, it’s not done very often,” Barkett says. “We’ve moved this notice requirement up to give it prominence in the rule. It will now be its own numbered subparagraph.”

Barkett says the hope is that its increased prominence will cause lawyers operating in federal court to follow the notice requirement.

A second major change relates to the subpoena power of the court — specifically, the territorial limits of that subpoena power. “That change was prompted by a decision from the Eastern District of Louisiana” during litigation of the maker of the drug Vioxx, Barkett says. “The district court there required an officer of the defendant in that lawsuit, the pharmaceutical company Merck, to appear at trial even though the individual was outside the subpoena power of the court. The committee decided that the district court in the Vioxx matter was not properly interpreting Rule 45 and has amended the rule to make it clear that, in fact, the subpoena power of the court is limited to the district court or the 100-mile rule that everyone is familiar with.”

The third change involves a motion to transfer an issue related to a subpoena back to the trial court. Presently, most people read the rule as not permitting a district court that is dealing with a subpoena issue to transfer the matter to trial court for resolution, Barkett says. “You may say, well, why would that ever be necessary,” he says. “As an example, if there is an outcome-determinative issue associated with a subpoena, you would want the court handling the trial of the matter to decide that as opposed to the court where the subpoena recipient resides.

“Or suppose that subpoenas have been issued in multiple jurisdictions,” he adds. “You wouldn’t want conflicting rulings from the different judges if similar objections are made to the subpoena by the subpoena recipients. So there are circumstances where it might make sense to allow the judge hearing a challenge to a subpoena to transfer it to the court where the trial will occur.”

The standard to allow the transfer is a rigorous one, Barkett says. “The committee was concerned that the right to transfer not turn into something routine because it did not want to place a burden on the subpoena recipient to have to travel far and hire counsel in a different jurisdiction where the trial report resided in order to object to the request for documents under a subpoena,” he says.

The fourth and final change is a significant one, Barkett says. He describes it as a simplification of Rule 45, “but what it does is it changes the issue in court now to the trial court.”

“Currently, under Rule 45, if a matter was pending in Miami and a subpoena had to be issued in Seattle, the attorney for the subpoena issuer would create a caption with the district court for Seattle and the name block for the court issuing the subpoena and then the attorney could serve it,” he says. “The subpoena would then proceed in the district court in Washington, and that would be called the enforcement court as well as the issuing court.”

Under the changes to the rule, the issuing court will now be the trial court, Barkett says. “So if you happen to be in Miami in a matter and you had to serve a subpoena in 15 different jurisdictions, instead of creating 15 subpoena forms with 15 different district courts in the name block of the subpoena, you’ll just issue the subpoena directly from the court where the matter is pending and then you serve it nationwide,” he says. “It will be made explicit that there is nationwide service of process. And you can do that directly from the court where the trial would occur, now called the issuing court.”

If the subpoena recipient wants to object, that’s still done in the court where the subpoena recipient resides, Barkett says.  

Sound Advice is produced by the Section of Litigation.

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Alert: Impending changes to Rule 45 of the Federal Rules of Civil Procedure


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