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On December 1, 2013, an amended FRCP 45 went into effect. Why did it require amendment? “Current Rule 45 creates what the Advisory Committee came to call a ‘three-ring circus’ of challenges for the lawyer seeking to use a subpoena.” Report of the Civil Rules Advisory Committee, May 8, 2012 (page 80 of the link). Those with federal cases need to be aware of the changes this post attempts to address. As always, I encourage you to actually read the rule yourself.
To help put these changes in context, consider this hypothetical. Assume I am defending a car manufacturer against a product case involving one of their
fine automobilescars. The case is venued in the District of Nevada. I want to inspect what remains of the car; envision the car inspection scene from Fight Club. The purportedly defective car, however, is at a junk yard, partially covered by a tattered blue tarpstorage facility, where it is protected from the elements, located in the Eastern District of Michigan. The storage facility hates lawyerswill not permit an inspection without a subpoena.
Which Court Issues the Subpoena?
Under the old rule, the court that could issue the subpoena varied. A subpoena to appear for a hearing or trial issued from the court where the trial was to occur, but a deposition subpoena issued from the court for the district that encompassed the deposition location and a subpoena just for production or inspection was issued from the court for the district where that production or inspection was to occur. FRCP 45(a)(2)(A)-(C) (2012). Applied here, the trial would be in Nevada, but requires an inspection in the Eastern District of Michigan and, for good measure, a deposition in the Northern District of Texas. Each would require a subpoena from a different court. Fun times.
The new rule eliminates this game. “A subpoena must issue from the court where the action is pending.” FRCP 45(a)(2)(A) (2013). Applied to the car inspection, the District of Nevada issues the subpoena. This change spawned many others.
What Does the Caption Look Like?
The old rule permitted multiple courts to issue subpoenas in a case, although only one was actually hearing the case. Therefore the subpoena needed to state not only the court that issued it, but also the court where the case was actually pending. FRCP 45(a)(1)(a)(i)-(ii) (2012). Under the old rule, my subpoena to the storage facility would have been issued from the Eastern District of Michigan, but would have included a slew of information about the case in the District of Nevada.
As the new rule authorizes only the court hearing the case to issue subpoenas, FRCP 45(a)(1)(a)(i)-(ii) were revised to simply require the subpoena identify the issuing court, the caption, and case number. Applied to my car inspection, the same caption I am using for other documents should be sufficient for the subpoena.
Which Attorney May Issue a Subpoena?
Given the possibility of multiple courts in different districts issuing subpoenas, the old rule permitted attorneys to issue subpoenas if the attorney is admitted to practice before the issuing court, wherever that might be. FRCP 45(a)(3)(A)-(B) (2012). For my car inspection, if I could not get the clerk to issue the subpoena, the old rule meant I would need an attorney admitted to practice in the Eastern District of Michigan to sign it.
Again, given that now only the court where the action is pending may issue the subpoena, this requirement was also modified. “An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court.” FRCP 45(a)(3) (2013). Now I can issue the subpoena through the District of Nevada and, since I am admitted to practice there, I can sign it.
Who Gets Notice of the Subpoena?
In Nevada state courts, there are frequently problems where a party issues a subpoena but does not provide notice of that subpoena to the other parties. This is apparently not an isolated problem.
As it examined Rule 45 issues, the Committee was repeatedly informed that this notice provision is frequently not obeyed. Parties often obtain documents by subpoena without notifying other parties that the subpoena has been served. The result can be that there are serious problems at or before trial when “surprise” documents emerge and arguments may be made that they should not be admissible or that further discovery is warranted.
Report of the Civil Rules Advisory Committee, May 8, 2012 (page 83 of the link). The committee considered it such a problem that it amended the rule.
The notice provision was previously buried in FRCP 45(b)(1) (2012). “If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.” The committee elected to emphasize this requirement by relocating and slightly modifying it. “If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.” FRCP 45(a)(4) (2013). Before serving a federal subpoena, a notice containing a copy of the subpoena must be itself served on the parties. This gives them an opportunity to potentially object or serve their own subpoenas.
How does this impact my site inspection hypothetical? I must give notice to the other parties of the subpoena before I serve it on the storage facility. How much notice is open to interpretation depending upon the circumstances.
Where Can I Serve a Subpoena?
The old rule imposed a variety of potential geographic restrictions upon serving a subpoena and litigation about whether a person was more than 100 miles from the courthouse. The fix? “A subpoena may be served at any place within the United States.” FRCP 45(b)(2) (2013). This means I can issue the subpoena from the District of Nevada for a site inspection to occur in the Eastern District of Michigan and then serve that subpoena in the Eastern District of Michigan.
Location of Compliance
The old rule had various, scattered restrictions as to the location the subpoena could specify for compliance. The committee was also concerned because some courts had determined a subpoena could still compel a person to attend trial even when the subpoena violated the geographic limits in effect. See In re Vioxx Products Liability Litigation, 438 F.Supp.2d 664 (E.D. La. 2006).
The fix was to create FRCP 45(c). “It collects the various provisions on where compliance can be required and simplifies them.” Committee Notes on Rules – 2013 Amendment. The committee also explicitly rejected In re Vioxx Products Liability Litigation’s interpretation of the geographic restrictions. In other words, a subpoena can be served anywhere, but it does not mean it is enforceable if it requires compliance beyond the geographic limits of FRCP 45(c).
This change has little impact upon my hypothetical because the subpoena is being issued for a site inspection. The changes primarily affect subpoenas for other discovery or trial purposes. I could not, for example, serve a subpoena on a witness in Michigan to attend a trial in Nevada.
Which Court Enforces the Subpoena?
If the storage facility balks at the subpoena, where do I file the motion to compel? The old rule required the motion to quash to be heard in the district for compliance, here the Eastern District of Michigan. The advisory committee acknowledged authority holding there are some instances where it might be better for the court hearing the case (Nevada) to hear the motion to quash than the enforcing court (Michigan). Why? The issuing court is hearing the whole case and may have a better handle on the situation.
The committee decided to create FRCP 45(f) to address this scenario. Applied to my hypothetical, the Eastern District of Michigan “may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.” Id. The drafter’s notes make quite clear, however, that the protection of the person subject to subpoena is to be given significant consideration.
Who Can Hold the Person Subject to Subpoena in Contempt?
FRCP 45(e) formerly stated contempt power for compliance was only vested in the court that issued the subpoena. The new rule permits transfer of subpoena-related motions, so FRCP 45(g) specifies both the issuing and enforcing courts possess contempt power. Under my hypothetical, if the storage facility fails to comply with the subpoena, both the Eastern District of Michigan and the District of Nevada possess contempt power.
About the Author
Michael Lowry is a lawyer in the Las Vegas office of Thorndal Armstrong Delk Balkenbush & Eisinger. He maintains a litigation practice in a variety of areas including professional liability, commercial transportation, premises liability and several others.
© Copyright 2014 Michael Lowry. Compelling Discovey Blog. All rights reserved.