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Rule 45 of the Federal Rules of Civil Procedure, is the lynchpin for compelling third-party witness and non-party cooperation for deposition testimony, document production and trial appearance. Changes, effective as of December 1, 2013 are designed to simplify the subpoena process. Most notably, subpoenas will issue directly from the single court in which the action is pending and be servable anywhere in the United States. The changes were approved by the U.S. Supreme Court in April of 2013 and transmitted to Congress. If Congress does nothing (always the expected scenario) to reject, modify, or defer them, the changes will become official. Rule 45 has been amended many times, even as recently as 2007, but the new changes are the most significant in decades.
To better appreciate and understand the rule changes, be aware of the distinction between the issuing court and the court that might ultimately be called upon to enforce the subpoena (the enforcing court). The current rules contain multiple provisions that designate which court, from among several, is to issue a given subpoena. The new rule resolves this annoyance by providing that a subpoena should issue from the court in which the action is pending, thereby allowing nationwide service of process. The enforcing court, whose duty it is to secure compliance would be at a place “reasonably convenient.” That particular term, which is not defined, might cause some problems and issues, particularly with respect to electronic discovery, which lately, never seems to be “convenient.”
Currently Rule 45 requires that a trial subpoena be issued from the court for the district in which the trial is to be held; a subpoena issued for deposition testimony must come from the court for the district in which the deposition is to occur; and, a subpoena for the production or inspection of documents must currently issue from the court for the district in which the production or inspection is to take place.
The amendments are simplifiers but not cure-all’s. They do not, unfortunately, centralize all third-party discovery disputes by sending them to the court where the litigation is pending. In particular, the 100 mile rule is still alive and well. To enforce a third-party subpoena, litigants will still be required to select a federal court within a 100 mile radius of where the subject of the subpoena resides, happens to be employed or regularly transacts business. Unlike the old rule, the new rule does, however, allow the court within the 100 mile radius to transfer any subpoena related motions back to the issuing court. Under the new rule, the court for the district where enforcement is required may transfer a subpoena related motion to the issuing court if: (1) The person subject to the subpoena consents, or (2) if the court finds “exceptional circumstances.” The rule doesn’t define “exceptional circumstances,” but the Committee Notes explain that, absent consent, a transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts.
As common sense suggests the practical effect of the “exceptional circumstances” language may make transfers uncommon. The Committee Notes state: “Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.”
The new rule also settles some other old battles by declaring that a party’s officer is generally subject to the same limitations as other subpoena recipients. In most circumstances, he or she can only be required to attend a trial, hearing or a deposition within 100 miles of his or her residence, place of employment (or a place where he or she regularly transacts business). A recipient may be required to attend a trial more than 100 miles from any of these places if the trial is within a state wherein that recipient lives, is employed, or regularly transacts business. Also, the new rule attempts to enhance the existing requirement that a party must give notice to other parties prior to serving a subpoena for the production of documents. The new rule’s text can be found here.