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Birmingham Bar Association Spring 2014

Civil Procedure mingham). Birmingham is not objectionable under the new Rule 45(c) because it is within 100 miles of Montgomery— the place where the person resides, is employed, or regularly transacts business in person. Yet, the action is not pending in the Northern District of Alabama and the person subject to the subpoena resides and is employed in the Middle District of Alabama. Thus, it seems odd that this person would have to seek relief from the Northern District of Alabama. Nonetheless, the new rule suggests this result. Transfer to the Court where the Action is Pending. The new Rule 45 adds subsection  (f), which authorizes the court where compliance is required to transfer an issue related to a subpoena to the court where the action is pending in two situations. First, a court may transfer an issue when the person subject to the subpoena consents to the transfer. Second, a court may transfer an issue upon a finding of “exceptional circumstances.” The Advisory Committee Note makes clear that “exceptional circumstances” are the exception, not the rule, and that a court’s primary “concern should be avoiding burdens on local nonparties subject to subpoenas.” Further, the comment suggests that a transfer is only appropriate when an issue might impede the management of the underlying litigation by the court where the action is pending. 3 Sanctions The new Rule 45(g) preserves a district court’s authority, formerly found in subsection (e), to punish a party for disobeying a subpoena or an order to comply with a subpoena. However, the new subsection also provides that, if an issue is transferred to the issuing court under the new Rule 45(f), then a failure to obey an order from the issuing court is contempt of both the issuing court and the court where compliance is required. The 2013 Amendments also incorporate a slightly different version of this new contempt provision into Rule 37(b)(1). 32 Birmingham Bar Association


Birmingham Bar Association Spring 2014
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