Amendment to Federal Rule of Civil Procedure 45

Posted on March 2nd, 2014 by Denise A. DickersonDickerson

For those of us with a multi-state practice, discovery often ensues in numerous places outside the jurisdiction in which the case is pending. Documents may be in the possession of a non-party entity in one state, fact witnesses located in another and the lawsuit pending in yet another. The process of document collection is often very time-consuming. Surprisingly often, a call to the entity resolves a request for documents. But, in other instances, a subpoena becomes necessary. That process has recently become a little bit simpler than in the past. At least as far as practicing in the federal court system.

Amendments to Fed. Civil Rule 45 became effective in Dec. 2013. Unlike the prior version, the court in which a case is pending can now issue a subpoena to an out-of-state entity. This eliminates the necessity of opening a case in the home District where the deponent/entity is located for the sole purpose of obtaining service of a subpoena. There is no expansion on the locale in which a person or entity can be compelled to appear. So, while the District in which the matter is filed can issue the subpoena, the deponent cannot be compelled to appear outside of the 100 mile radius of their residence/employer. The rule also includes a location wherein the deponent “regularly transacts business in person”.

Also clarified in the new Rule 45 are service requirements. As clearly stated in the new rule, service upon other parties is required at the time the subpoena is issued for service regardless of whether service is obtained. While this was also the procedure in the prior version of the Rule, it was often not heeded. It is not appropriate to wait until service is perfected before providing notice and copies of the subpoena to all parties. The home District of the deponent is still the primary forum for resolution of disputes pertaining to subpoenas, however, an issuing court can now hear the dispute if the recipient of the subpoena consents to having the matter transferred to the issuing court for handling.

This revised rule much simplifies the procedural issues present in cases pending in the federal court system. State Court rules still vary and it remains to be seen whether the state courts will follow the lead of the federal court and likewise amend their rules pertaining to subpoenas for document, depositions, etc.