Simplifying Subpoena Practice – Rule 45 Gets a Makeover

Say goodbye to those anxious readings (and re-readings) of Rule 45.  After twenty-two years, Rule 45 is getting a makeover.  Last September, the Judicial Conference of the United States approved the first substantive amendments to Rule 45 since 1991.  The proposed amendments are now before the Supreme Court, which has until May 1, 2013 to approve and transmit the proposed rule changes to Congress.  Absent congressional action, these revisions will become effective on December 1, 2013.

Several specific changes are proposed to Rule 45 in an attempt to simplify federal subpoena practice.  A few of the most important revisions are summarized below.

  1. The proposed revisions to Rule 45(a)(2) provide that all subpoenas, for documents or testimony or both, will issue from the court where the action is pending.
  2. Under the newly proposed subsection (a)(4), documents-only subpoenas must be served on each party before the subpoena is served on the person to whom it is directed, and the notice must include a copy of the subpoena.
  3. Service of process will be extended nationwide under proposed subsections (b)(2) and (c) – alleviating the need to identify and retain local process servers.  But, the witness is required to comply only within the state or within 100 miles of where the witness lives, works, or regularly does business in person.  The proposed amendments are not, however, intended to restrict the parties' ability to agree on a place of production.
  4. The newly added subsection (f) authorizes the transfer of subpoena-related motions (e.g., motions to quash, motions to compel, motions for protective order) from the enforcement court to the issuing court (i.e., the court where the underlying action is pending).

These proposed modifications are a practical response to the problems of compliance with Rule 45 and to the litigation that occurs in districts far removed from the district in which the case is pending.  If approved, these amendments will significantly refine federal subpoena practice.  For more information regarding the pending revisions to Rule 45, please check out my article published in the March 2013 edition of the ABA's TYL Newsletter.

About The Author

Erin Rhinehart | Faruki Partner