Change To Federal Rule Impacts Subpoenas And Litigation Strategy
[February 18, 2014] Now that proposed amendments to Rule 45 of the Federal Rules of Civil Procedure (“Rule 45”) have gone into effect, parties involved in federal-court litigation may have an easier time obtaining discovery from non-parties, but more trouble getting out-of-state witnesses to attend trial. The amendments, among other things, address which court should issue the subpoena; where the subpoena may be served; what must be done to properly notify other parties that a “documents only” subpoena will be served; where compliance with the subpoena is to take place; and where motions to enforce the subpoena are to be filed.
Because these changes to Rule 45 significantly affect subpoena procedures in federal-court litigation, it is important for all employers, schools, and other organizations to familiarize themselves with these changes. The most significant revisions to Rule 45 are summarized below.
1. Issuing Court
Under the amended rule, “the court where the action is pending” will always be the issuing court, regardless of the type of subpoena being served. Previously, the issuing court varied: (i) if a subpoena required a person to attend a hearing or trial, then the issuing court was “the court for the district where the hearing or trial [was] to be held”; (ii) if the subpoena required a person to attend a deposition, then the issuing court was “the court for the district where the deposition [was] to be taken”; and (iii) for a “documents only” subpoena, the issuing court was “the court for the district where inspection or production [was] to be made.” Accordingly, this amendment simplifies the practice of issuing a federal subpoena.
2. Nationwide Service
Similarly, as amended, Rule 45 now simplifies things by allowing subpoenas to be served anywhere in the United States, regardless of the type of subpoena being served. Rule 45 previously required service of subpoenas to take place as follows: (i) “within the district of the issuing court”; (ii) “outside the district but within 100 miles of the place specified for deposition, hearing, trial, production, or inspection”; (iii) “within the state of the issuing court if a state statute or a court rule allows service at that place of a subpoena issued by a state court of general jurisdiction”; or (iv) “any place … that the court authorizes on motion and for good cause, if a federal statute so provides.”
3. “Documents Only” Subpoenas
Rule 45 now requires notice and a copy of a “documents only” subpoena to be served on all parties before service of the subpoena itself. The requirement to include a copy of the subpoena with the notice is new. Advance notice was required under the former rule, but compliance with this obligation was inconsistent. Accordingly, the amended rule places greater emphasis on the notice requirement by moving it from its prior position, the last sentence of subsection (b)(1), to a stand-alone subsection, (a)(4). It appears that these changes are intended to give parties with standing an opportunity to raise timely objections.
4. Place of Compliance
The text now appearing at Rule 45(c) clarifies that a party or a party’s officer may be required to travel for a hearing or trial only “within 100 miles of where the person resides, is employed, or regularly transacts business in person” or to a more distant location “within the state where the person resides, is employed, or regularly transacts business in person.” This resolves a split among federal district court judges as to whether parties and their officers (as opposed to non-parties) may be compelled to travel beyond these limits. Two recent cases from the Eastern District of Louisiana illustrate this split. In the first case, a judge from this district required a party’s officer to travel from New Jersey to New Orleans to testify at trial, while in the second case, a different judge from this district refused to enforce a trial subpoena that would have required various parties to travel more than 100 miles from outside the state.
This clarification has strategic implications for corporate defendants whose officers are outside the rule’s geographical limitations. To illustrate, suppose an officer of a corporate party is deposed in the ordinary course of a lawsuit and testifies brilliantly. In this scenario, the corporate party might refuse to voluntarily produce the officer for trial, being comfortable with the prospect of any portion of the deposition transcript being introduced into evidence. On the other hand, if the deposition does not go so well, then the corporate party may wish to make the officer available for trial, even though the officer could not be compelled to attend, in order to resurrect, clarify, or supplement portions of the officer’s deposition testimony that might otherwise be misunderstood.
The revised Rule 45(c) takes a slightly different approach to non-parties. Like a party or a party’s officer, a non-party may be compelled to travel “within 100 miles of where the person resides, is employed, or regularly transacts business in person.” However, a non-party may not be required to appear within the state at a location outside the 100-mile limit unless the non-party “would not incur substantial expense.” As to this point, the comments to the revised rule explain that “[w]hen travel over 100 miles could impose substantial expense on the witness, the party that served the subpoena may pay that expense and the court can condition enforcement of the subpoena on such payment.”
In the case of a “documents only” subpoena, production may be commanded to occur at a place “within 100 miles of where the person [subject to the subpoena] resides, is employed, or regularly transacts business in person.” However, the revised rule is not intended to restrict agreements between the parties allowing production to be transmitted by electronic means, as such agreements are commonplace and serve to facilitate discovery.
5. Court of Enforcement
The amendments also include a new provision, subsection (f), intended to protect subpoenaed persons from undue burden by requiring motions relating to the subpoena, such as motions to quash or to enforce the subpoena, to be filed in “the court for the district where compliance is required” as opposed to the issuing court (i.e., the court where the lawsuit is pending). In addition, under this new subsection, such motions can be transferred to the issuing court only (i) with the consent of the subpoenaed person, or (ii) upon a showing of “exceptional circumstances.” As a general rule, then, a subpoenaed person now will have the luxury of challenging the validity of the subpoena in his or her local federal district court, regardless of where the lawsuit was filed.
Parties involved in federal-court litigation should familiarize themselves with the new Rule 45, as the amendments to this rule may significantly affect not only compliance obligations and costs, but also litigation strategy. Please feel free to contact us if you have any questions about the amended Rule 45 or other aspects of federal-court litigation.