New Amendments to Federal Rule 45 Are Now In Effect

New Amendments to Federal Rule 45 Are Now In Effect

New rules went into effect yesterday, December 1, 2013, making the process of requiring non-parties to appear for testimony or to produce documents simpler in cases in federal district court and also clarifying or resolving issues regarding the scope of the subpoena power.  The new rules are stated in an amended Rule 45 of the Federal Rules of Civil Procedure.

New Rule 45 allows subpoenas issued from the district in which the action is pending to be served and be effective anywhere in the United States.  Before, a subpoena could issue only from the court for the district where the deposition was to be taken or the document production was to be made.  For example, if one’s action was pending in the Western District of Washington but testimony or documents were needed from a witness or entity in Los Angeles, one had to have local counsel in the Central District of California to obtain and serve the subpoena, and that district would also be the only place where the subpoena could be enforced.  The new rule eliminates all this:  now counsel may issue a subpoena from the Washington court and serve it upon someone in California.[1]

Amendments to Rule 45 also resolve the issue of where a party or party officer may be compelled to appear for trial.  Some courts held that the old Rule 45 required a party or party officer to testify at trial outside the state in which he or she resided, worked, or did business—regardless of the distance he or she had to travel.[2]  Other courts interpreted the old rule to require a party officer to testify at trial out of state only if he or she did not have to travel more than 100 miles.[3]  In other words, the California-resident CEO of a California corporation that filed suit in Washington could not be compelled to testify at trial in Washington.

Perhaps contrary to common sense, the amended Rule 45 actually resolves the dispute in favor of the more restrictive approach.  Under the new rule, a subpoena may command a party or party officer to testify only within the state in which he or she resides, works or does business.  For other witnesses, a subpoena can compel attendance only within 100 miles or, for trial (and provided the witness would not incur substantial expense), within the state.

Because depositions of parties and party officers do not require a subpoena (unlike trial testimony), the restrictions in new Rule 45 do not limit the courts’ authority to control the place of party depositions or to impose sanctions for failure to appeal under Rule 37(b).  Thus, the CEO of the California plaintiff in the example above could still be required to come to Washington for deposition.

Finally, the amendments to Rule 45 clarify that a party serving a document subpoena must serve notice and a copy of the subpoena on other parties before it is served on the witness.  The purpose of this requirement is to enable other parties to object to the subpoena or serve their own subpoena for additional documents, but the requirement has been often overlooked in the 20 years since it was added to Rule 45.

As noted at the outset, these rule changes are effective right now.  There are more sweeping changes on the horizon:  proposed amendments regarding proportionality in discovery and regarding document-preservation obligations are under review and will likely become effective in December 2015.  We will address these proposed amendments in upcoming posts for those interested in submitting comments about them or in understanding where the federal rules regarding discovery are headed.

–Miles Yanick

[1] Under new Rule 45, a motion related to a subpoena still must be brought in the jurisdiction where compliance is required (the “enforcement court”).  But the new rule allows the enforcement court to transfer the motion back to the issuing court if the person subject to the subpoena consents or if “exceptional circumstances” warrant it.  If transferred, the issuing court may use the enforcement court to enforce its order in the enforcement court’s jurisdiction.

[2] See In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006).

[3] See Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008).