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Birmingham Bar Association Spring 2014

Civil Procedure Steven C. Corhern; Balch & Bingham, LLP 2013 Ends With Big Changes to Federal Rule of Civil Procedure 45 The 2013 Amendments to Federal Rule of Civil Procedure 45 (effective December 1, 2013) mean that practitioners should review the new process for obtaining and opposing a subpoena in federal court and must revise their existing subpoena templates. One of the most effective tools for trial lawyers is the Rule 45 subpoena. Over the years, a number of circuit splits, ambiguities and interpretive liberties have made the scope and operation of Rule 45 itself the subject of many ancillary disputes. The 2013 Amendments make four major substantive changes to Rule 45 that are intended to eliminate such disputes and to streamline federal subpoena practice. First, a subpoena must issue from the court where the matter is pending. Second, a party can serve the subpoena anywhere in the United States in all circumstances. Third, even though Rule 45 now provides for nationwide service of a subpoena, the subpoena can only command compliance within 100 miles of where a person resides, is employed, or regularly transacts business in person. A subpoena for a deposition, trial, or hearing can have a slightly longer reach in certain situations. Fourth, a person opposing a subpoena must initially seek relief from the court for the district where compliance is required. But the new rule also allows that court to transfer issues related to the subpoena to the court where the action is pending if: (1) the subpoenaed person consents, or (2) the court finds exceptional circumstances. The 2013 Amendments also make several non-substantive but significant changes. The new rule moves the “prior notice” requirement for documents-only subpoenas to a new subsection to emphasize compliance. It also alters a court’s power to sanction noncompliance under Rule 45 and Rule 37 consistent with its new power to transfer subpoena-related issues. Issuing a Subpoena Under the old Rule 45, the type of subpoena determined the court from which the subpoena had to issue. For a trial or hearing, a subpoena had to issue from the court where the trial or hearing would occur. For a deposition, a subpoena had to issue from the court where the deposition would be taken. For the production of documents, a subpoena had to issue from the court where the production would occur. The new Rule 45 eliminates these various provisions. Now, all subpoenas must issue from the court where the action is pending. See Fed. R. Civ. P. 45(a)(2). Serving a Subpoena The old Rule 45 contained four different provisions regarding the service of a subpoena. Generally, the service of a subpoena was geographically limited to the district or state where the court issuing the subpoena was located. Additionally, a party could serve a subpoena outside the district but within 100 miles of the place for the deposition, trial, or hearing. But the old rule also provided that a subpoena could be served at any place within the United States if a federal statute allowed for nationwide service and the court, upon a showing of good cause, authorized that service. The new Rule 45 makes this exception the rule. Now, a party can serve a federal subpoena at any place within the United States.1 **Notice Requirement For Document-Only Subpoenas** The old Rule 45(b)(1) required that, if a subpoena commanded the production of documents, electronically stored information, or other tangible things, a party must give all other parties notice of the subpoena before it was served. The new Rule 45 does not alter this 30 Birmingham Bar Association


Birmingham Bar Association Spring 2014
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