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Birmingham Bar Association Spring 2014

Civil Procedure requirement, but it did move it to a new subsection—(a)(4). According to the Advisory Committee Note, many practitioners were not providing the required “prior notice” of the subpoena. Several commentators suggested that this failure was likely caused by the “prior notice” requirement’s obscure placement in the third sentence of section (b)(1). By moving the “prior notice” requirement to its own subsection, the new rule should promote compliance. The new subsection (a)(4) does make one significant change—the party giving “prior notice” must serve a copy of the subpoena with that notice. But, unlike Alabama Rule 45, which expressly requires 15 days prior notice, neither the old nor the new version of federal Rule 45 fixes how much “prior notice” a party must give. Limits On a Court’s Subpoena Power Under the old Rule 45, the limits on the court’s subpoena power were not always clear. The new Rule 45 addresses this problem by adding subsection (c), which expressly sets forth the limits on a court’s power. The new subsection provides that “A subpoena may command a person to attend a trial, hearing, or deposition only as follows,” and then sets forth two different limits: one for the production of documents and one for depositions, trials, and hearings. See Fed. R. Civ. P. 45(c)(1). Regarding the production of documents, electronically stored information, or other tangible things, a subpoena can command production “at a place within 100 miles of where the producing person resides, is employed, or regularly transacts business in person.” See Fed. R. Civ. P. 45(c)(2)(A). There are no exceptions to this 100 mile rule. The rule for depositions, trials, and hearings is slightly different. Generally, a court cannot compel a person to travel more than 100 miles from “where that person resides, is employed, or regularly transacts business in person.” See Rule 45(c)(1)(A). There are two exceptions. First, a court can order a party or a party’s officer to attend a deposition, trial, or hearing anywhere within the state where that person resides, is employed, or regularly transacts business in person. See Rule 45(c)(1)(B)(i). Second, a court can order a person (not just a party or its officer) to attend a trial anywhere within the state where that person resides, is employed, or regularly transacts business in person so long as that person will not incur substantial expense. See Rule 45(c) (1)(B)(ii). The new Rule 45(c) expressly overrules a split of authority regarding the power to compel a party or its officer to attend a trial. Under the old rule, some courts concluded that they could compel a party or its officers to attend a trial even if that person lived outside a state and more than 100 miles from the court house. For example, in In re Vioxx Products Liability Litigation, 488 F. Supp. 2d 664 (E.D. La. 2006), a Louisiana federal district court ordered a party’s officer to testify at a trial in New Orleans even though that person lived in New Jersey. The new Rule 45 overrules In re Vioxx, and makes clear that a court cannot command a person, including a party or a party’s officer, to travel more than 100 miles to attend a deposition, trial, or hearing unless that person “resides, is employed, or regularly transacts business in person” in the same state as the trial or deposition. 2 Opposing a Subpoena Place Where Compliance is Required. Under the old Rule 45, a party opposing a subpoena could easily determine the court from which to seek relief. Because a subpoena issued from the court where the trial or hearing would be held, the deposition would occur, or the documents would be produced, a party sought relief from the issuing court. Under the new Rule 45, a subpoena must issue from the court where the action is pending. But a person does not seek relief from that court. Instead, the new versions of Rule 45(d)(2)(B), (d)(3), and (e)(2)(B) direct a person opposing a subpoena to seek relief from “the court for the district where compliance is required.” It is not exactly clear from the language of the new Rule 45 “where compliance is required.” The new subsection (c) is titled “Place of Compliance” but that subsection only addresses the geographical limits on a court’s power. It does not specify “where compliance is required” for determining the court to which the person opposing the subpoena should turn. Rule 45(a)(1)(iii) may provide the answer. This provision requires each subpoena to specify the place where the person must appear for the deposition, trial, or hearing or produce the documents. Arguably, this specified location is the place “where compliance is required.” However, this interpretation could produce some bizarre results. For example, in an action pending in Atlanta, a party might specify Birmingham as the location for the deposition of a person who lives in Montgomery (which is located in the Middle District of Alabama but is less than 100 miles from Bir- Birmingham Bar Bulletin/ Spring 2014 31


Birmingham Bar Association Spring 2014
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