Federal Bar Update: Rule 45 amendments on subpoenas took effect Dec. 1

Amendments took effect Dec. 1 to Rule 45 of the Federal Rules of Civil Procedure. Also, amendments took effect to several of the Southern District of Indiana’s Local Rules.

Rule 45 Significantly Revised – The most significant change for Indiana federal practitioners comes from amendments to Fed. R. Civ. P. 45. The new version is found at www.uscourts.gov under the Rules & Policies link. Practitioners are cautioned that many websites will be slow to have the revised version (although law.cornell.edu – as usual – has it right), and updated hard copy rule pamphlets typically do not issue until late winter.

There are four areas of change for subpoena practice under Rule 45: (a) pre-service notice requirements for third-party subpoenas are more prominent in the amended rule; (b) the amendment clarifies that the 100-mile rule indeed applies; (c) issuance of subpoenas outside of the district where the action is pending will now bear only the caption of the district where the action is pending (and thus be “issued” from that court); and (d) for subpoenas served outside the district where the action pends, the court where the recipient is based can transfer a discovery motion regarding the subpoena to the issuing court upon consent of the recipient or in exceptional circumstances.

Pre-service notice – The amended Rule 45 has new subsection 45(a)(2)(4), which provides, “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.”

This requirement previously existed under the prior version of the rule, but it was not separated in its own subsection with its own heading. The Rules Committee was concerned that prior to third-party document requests being served, the opposing party was not receiving advance notice so as to be able to object or seek court relief.

Southern District related change – Effective Dec. 1, the Southern District of Indiana adopted new Local Rule 45-1 to give guidance on how much advance notice is required: “Rule 45-1 – Service of Subpoena on Non-Parties – Notice Requirement If a subpoena to produce or permit is to be served upon a nonparty, a copy of the proposed subpoena must be served on all other parties at least 7 days prior to service of the subpoena on the nonparty, unless the parties agree to a different time frame or the case management plan provides otherwise. Provided, however, that if such subpoena relates to a matter set for hearing within such 7 day period or arises out of a bona fide emergency, such subpoena may be served upon a nonparty 1 day after a notice and copy of the subpoena is served on each party.”

100-Mile rule – New Federal Rule 45(c) collects and simplifies provisions as to where compliance can be required. Compliance may be required within 100 miles of where the recipient resides, is employed or regularly conducts business in person. For parties and party officers, Rule 45(c)(1)(B)(i) provides that compliance may be required anywhere in the state where the person resides, is employed or regularly conducts business in person. Nonparty witnesses can be required to travel more than 100 miles within the state where they reside, are employed or regularly transact business in person only if they would not, as a result, incur “substantial expense.” When travel over 100 miles would impose substantial expense, the party that served the subpoena may pay that expense and the court can condition enforcement of the subpoena on such payment.

Overriding the Vioxx decision, 438 F. Supp. 2d 664 (E.D. La. 2006), Rule 45(c)(1)(A) does not authorize a subpoena for trial to require a party or party officer to travel more than 100 miles unless the party or party officer resides, is employed or regularly transacts business in person in the state.

Issuing court – Thankfully, the amended Rule 45(a)(2) provides that a “subpoena must issue from the court where the action is pending.” This removes the silly fiction of out-of-district subpoenas being “issued” by another court, which led – upon lawyer errors in this regard – to needless form-over-substance battles. As before, an attorney authorized to practice in the issuing court may issue and sign the subpoena.

Transfer – Finally, for motions regarding subpoenas requiring compliance outside the issuing district, the motion (e.g., a motion to quash or to compel) may be transferred to the issuing court if (a) the recipient consents; or (b) if the court finds “exceptional circumstances.” Notably, the Federal Magistrate Judges Association advocated for a lower standard for transfer, which makes sense given that magistrate judges usually address these discovery motions. The Federal Magistrate Judges Association preferred that it be easier to transfer these motions to the issuing court, which has knowledge of the action.

The comments to the amendments, however, indicate concerns about the recipient, stating “The 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. In some circumstances, however, 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. Transfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion. Judges in compliance districts may find it helpful to consult with the judge in the issuing court presiding over the underlying case while addressing subpoena-related motions.”

Practice tip – Counsel are advised to carefully review, dissect and re-review new Rule 45 in its entirety, and to then consult it each time Rule 45 is utilized. It is a long, complex and cumbersome rule, but one that is invoked repeatedly.•

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John Maley – [email protected] – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, employment matters and appeals. He chairs the Local Rules Advisory Committee for the S.D. of Indiana and is a member of the Local Rules Advisory Committee for the N.D. of Indiana. The opinions expressed are those of the author.