By Michael P. Daly and David A. Solomon

Attorneys wishing to serve a federal subpoena have historically had to navigate a complex web of rules regarding issuance, service and compliance that were either confusing or amusing, depending on one’s point of view. Indeed, the Advisory Committee on the Rules of Civil Procedure recently referred to Rule 45 as a “three-ring circus.” Much of that will change on December 1, 2013, however, when recent amendments to Rule 45 finally take effect.

Issuing a Subpoena

Serving a subpoena has long required a party to determine the proper issuing court based on the type of subpoena and the location of the person or items sought. For example, if a case is pending in the District of New Jersey but a party wished to take a nonparty’s deposition in Chicago, the subpoena had to issue from the Northern District of Illinois—assuming the nonparty was within that district, within 100 miles of Chicago, etc.—because that was the district “where the deposition is to be taken.” However, if the party simply wished to review the nonparty’s documents, Rule 45(a)(2)(C) required that the subpoena issue from the district “where the production or inspection is to be made,” which has generally (but not always) been read to mean the place where the documents are located, which itself is open to interpretation, especially in an age when documents are increasingly stored in and produced from “the cloud.” The amendments eliminate the need for these analyses by requiring that the issuing court—for all subpoenas, in all cases—be the court where the action is pending.

Serving a Subpoena

The complexities of serving subpoenas have also been eliminated. In its current form, for service within the United States, Rule 45 allows service at any place within the district of the issuing court; outside of that district but within 100 miles of the place specified for a deposition, hearing, trial, production, or inspection; within the state of the issuing court in accordance with state law; or where the court authorizes service on motion in appropriate circumstances. In its amended form, however, Rule 45 will simply allow service at any place within the United States.

Complying with a Subpoena

Geographic limitations have not been eliminated entirely, however. Rather, some have been retained in a new subsection (c), entitled “Place of Compliance.” Under new subsection (c)(1), a subpoena may command a person’s attendance at a trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly does business. A subpoena may also command attendance within the state where the person resides, is employed, or does business, outside of 100 miles, if the person is a party or a party’s officer, or is commanded to attend trial and would not incur substantial expense.

For other discovery, a subpoena may command production within similar 100-mile guidelines. Under new subsection (c)(2), a subpoena may command production of documents, electronically stored information, or other tangible things at a place within 100 miles of where the person resides, is employed, or regularly does business, and may command inspections of premises at (not surprisingly) the premises to be inspected. By tying compliance to where the person is, rather than the place “where the production . . . is to be made,” new subsection (c)(2) should alleviate much of the confusion concerning production subpoenas.

Enforcing a Subpoena

As discussed above, the issuing court for all subpoenas will be the court where the action is pending. But the issuing court may not be the enforcement court if the individuals or documents subpoenaed are outside the boundaries defined by Rule 45(c). Recognizing this, the Committee amended Rule 45’s enforcement provisions and added transfer procedures. Motions made under Rule 45 (e.g., motions to quash a subpoena, to compel compliance with a subpoena, or to protect privileged communications from production) are directed to the enforcement court, that is, the district where compliance is required. Under new subsection (f), however, if the enforcement court is not the issuing court, the enforcement court may transfer a Rule 45 motion to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. The Committee opined that the burden of showing exceptional circumstances—which falls on the proponent of a transfer—should be a heavy one. It advised that “[t]he prime concern should be avoiding burdens on local nonparties subject to subpoenas, and it should not be assumed that the issuing court is in a superior position to resolve subpoena-related motions.” Such motions may be transferred, for example, to avoid disrupting the issuing court’s management of the case. The Committee suggested that the nonparty’s interest in local resolution of the motion is paramount, however, and motions should be transferred only if other interests outweigh it.

Notice of a Subpoena

The preceding amendments substantively change Rule 45. A final significant change is meant not to change Rule 45, but to reinforce a requirement already present but not often followed. Rule 45 requires a party serving a “documents only” subpoena to notify other parties before serving the subpoena. The Committee discovered, however, that this provision has been rarely followed. In order to increase its prominence and to encourage compliance, this requirement will be transplanted from subsection (b)(1) to new subsection (a)(4). The amended provision will also require inclusion of a copy of the subpoena with the notice, which current Rule 45(b)(1) does not explicitly require. The amendment seeks to solve problems created by “surprise” documents that appear before or during trial and that therefore raise possible admissibility issues.

* * * *

Once in effect, the amendments will streamline Rule 45 and will simplify the procedures for issuing and serving subpoenas by parties and for complying with subpoenas by nonparties. A comparison of Rule 45 and the amended provisions is below. The Committee Report is available here.

 

Current

 

Amended

 
Issuance
 
 
(a)(2) Issued from Which Court. A subpoena must issue as follows:
(A) for attendance at a hearing or trial, from the court for the district where the hearing or trial is to be held;
(B) for attendance at a deposition, from the court for the district where the deposition is to be taken; and
(C) for production or inspection, if separate from a subpoena commanding a person’s attendance, from the court for the district where the production or inspection is to be made.
  (a)(2) Issuing Court. A subpoena must issue from the court where the action is pending.
 
Service
 
 
(b)(2) Service in the United States. Subject to Rule 45(c)(3)(A)(ii), a subpoena may be served at any place:
(A) within the district of the issuing court;
(B) outside that district but within 100 miles of the place specified for the deposition, hearing, trial, production, or inspection;
(C) within the state of the issuing court if a state statute or court rule allows service at that place of a subpoena issued by a state court of general jurisdiction sitting in the place specified for the deposition, hearing, trial, production, or inspection; or
(D) that the court authorizes on motion and for good cause, if a federal statute so provides.
  (b)(2) Service in the United States. A subpoena may be served at any place within the United States.
 
Compliance
 
 
See (a)(2) and (b)(2) above.   (c) Place of Compliance.

(1) For a Trial, Hearing, or Deposition. A subpoena may command a person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly transacts business in person, if the person
(i) is a party or a party's officer; or
(ii) is commanded to attend a trial and would not incur substantial expense.

(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
 
Enforcement
 
 

(c) Protecting A Person Subject To A Subpoena.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing court must enforce this duty and impose an appropriate sanction—which may include lost earnings and reasonable attorney’s fees—on a party or attorney who fails to comply.


 


. . . . .

(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the issuing court must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person who is neither a party nor a party’s officer to travel more than 100 miles from where that person resides, is employed, or regularly transacts business in person—except that, subject to Rule 45(c)(3)(B)
(iii), the person may be commanded to attend a trial by traveling from any such place within the state where the trial is held; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.

. . . . .



















 


. . . . .

(e) Contempt. The issuing court may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. A nonparty’s failure to obey must be excused if the subpoena purports to require the nonparty to attend or produce at a place outside the limits of Rule 45(c)(3)(A)(ii).

 

(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The court for the district where compliance is required must enforce this duty and impose an appropriate sanction — which may include lost earnings and reasonable attorney's fees — on a party or attorney who fails to comply.

. . . . .

(3) Quashing or Modifying a Subpoena.
(A) When Required.
On timely motion, the court for the district where compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.








 

. . . . .

(f) Transferring a Subpoena-Related Motion. When the court where compliance is required did not issue the subpoena, it 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. Then, if the attorney for a person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court. To enforce its order, the issuing court may transfer the order to the court where the motion was made.

. . . . .

(g) Contempt. The court for the district where compliance is required — and also, after a motion is transferred, the issuing court — may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.

 
Notice
 
 
(b) Service. (1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas... 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.   (a) In General. (4) Notice to Other Parties Before Service. 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.

 

Source: Client Alert