The Streamlined Subpoena Power under Amended Federal Rule of Civil Procedure 45 – Effective December 1, 2013, Barring Congressional Action

            This year several proposed amendments to the Federal Rules of Civil Procedure (“Civil Rules”) are under consideration.  In a previous post, we highlighted the most recent proposed amendments to the Civil Rules which focus on discovery limits and spoliation sanctions and were published for public comment by the Judicial Conference Advisory Committee on Civil Rules on August 15, 2013 (the “Discovery Amendments”).  On December 1, 2013, some of the most long-awaited changes to the Civil Rules will take effect – the proposed amendments to Rule 45, which governs the use of subpoenas in federal civil actions.  The Rule 45 proposed amendments were originally circulated for public comment in August 2011 and have been described as the first significant changes to Rule 45 in twenty years.  A modified version of the Rule 45 proposed amendments was adopted by the Judicial Conference in late 2012 and submitted to the U.S. Supreme Court for consideration.  The U.S. Supreme Court then adopted the proposed amendments and submitted them to Congress for consideration on April 16, 2013.  The proposed amendments to Rule 45 will take effect, unless Congress takes action to alter or block the changes.  The major changes to Rule 45 include: (1) simplifying the rules regarding the court issuing a subpoena, (2) highlighting the notice requirements for document-only subpoenas, (3) clarifying the circumstances under which an officer of a party may be compelled to testify at trial, and (4) permitting the transfer of motions regarding enforcement of a subpoena.  We highlight the substance of these changes below, and provide a brief update regarding the status of the Discovery Amendments.

Rule 45 Amendments

            The Court Issuing a Subpoena:  The proposed amendments seek to simplify Rule 45 by making the court where the action is pending the issuing court for all subpoenas, instead of the current rule under which the issuing court varies depending upon the purpose of the subpoena.  The proposed amendment also permits service of a subpoena throughout the United States, which is consistent with Federal Rule of Criminal Procedure 17(e), and combines the provisions on “the place of compliance,” (i.e. limits on where one must appear, produce, etc.) into a new subsection, Rule 45(c).

            Notice Required Before Serving Document-Only Subpoena: To remedy counsel’s repeated failure to comply with the requirement to provide notice to a party prior to serving a document-only subpoena, the proposed amendments create a new Rule 45(a)(4) with the following heading: “Notice to Other Parties Before Service.” The new subsection modifies the existing requirement by requiring a copy of the subpoena to accompany the notice. 

            Compelling testimony of a Party/Party Officer: The new Rule 45(c) keeps the place of compliance provisions of the current rule, for the most part, and contains language meant to resolve “conflicting interpretations of the current rule as to whether a party or party officer can be compelled by subpoena to travel more than 100 miles to attend trial.”  One interpretation, established in In re Vioxx Products Liability Litigation, 438 F.Supp.2d 664 (E.D. La. 2006), is that the geographical limits that apply to non-party witnesses do not apply to a party or party officer.  In Vioxx, an officer of the defendant lived and worked in New Jersey and was served outside of Louisiana, but was required to testify at trial held in New Orleans.  The proposed amendments provide that the limits on commanding a witness to testify apply equally to any person, including a party or party officer, as originally intended.

            Transfer of Enforcement Motions: The proposed amendments add Rule 45(f) to explicitly authorize the transfer of subpoena-related motions (motions for protective order and motions to enforce the subpoena) from the enforcement court, which is the court for the district where compliance is required, to the issuing court.

            You can access a redlined version of the Rule 45 proposed amendments in Appendix C to the September 2012 Summary of the Report of the Judicial Conference Committee on Rules of Practice and Procedure.

Status of the Discovery Amendments

            For a detailed description regarding key changes proposed in the Discovery Amendments, you can read our previous post. On November 5, 2013, the Senate Judiciary Committee, Subcommittee on Bankruptcy and the Courts held a hearing to discuss the pending Discovery Amendments: “Changing the Rules: Will limiting the scope of civil discovery diminish accountability and leave Americans without access to justice?”  You can access a webcast of the hearing and witness testimony here. And on November 7, 2013, the first of three public hearings on the proposed changes was held in Washington, DC.  The other two hearings are scheduled for January 9, 2014 in Phoenix, Arizona and February 7, 2014 in Dallas, Texas.  If you are interested in testifying at a public hearing, you must notify the Committee at least 30 days prior to the scheduled hearing.  You also can submit written comments on the proposed amendments until February 15, 2014.  Additional information regarding the hearing and comment schedule can be found through the Proposed Amendments  and Comment Submission links.  Comments can be submitted electronically through this link, or by mail to:

Committee on Rules of Practice and Procedure
Administrative Office of the United States Courts
One Columbus Circle, NE
Washington, D.C. 20544

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