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United States of America > California > Litigation Dispute resolution > Advisory > Article > Advisory on Amendments to Rules 37 and 45 of the Federal Rules

Article: Advisory on Amendments to Rules 37 and 45 of the Federal Rules

On December 1, 2013, new amendments to Rules 37 and 45 of the Federal Rules of Civil Procedure became effective.  The amendments streamline, simplify, and clarify the subpoena process.

First, and perhaps most importantly, the amendments vastly simplify Rule 45 by making the court where an action is pending the issuing court, permitting service throughout the United States.  See Fed. R. Civ. P. 45(a)(1)-(3).  Previously, parties had to determine in which federal district the party to be subpoenaed resided and issue the subpoena from that district instead of the district where the case was pending.

Second, subsection 45(c) “Place of Compliance” was added to clarify a split in the case law regarding when a subpoena may command a person to testify at a hearing or trial.  Under the prior rule (subsection 45(c)(3) “Quashing or Modifying a Subpoena”), some courts determined all witnesses, including a party or party officer, could not be subpoenaed to provide testimony more than 100 miles from where that party resides, is employed, or regularly transacts business, whereas other courts treated a party or a party officer differently and required them to travel further than 100 miles to testify at trial.  Compare In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006) (finding authority to compel a party officer from New Jersey to testify at trial in New Orleans), with Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008) (holding that Rule 45 did not require attendance of plaintiffs at trial in New Orleans when they would have to travel more than 100 miles from outside the state).  Amended Rule 45(c)(1)(A) resolves this split and authorizes a subpoena for trial to require a party or party officer to travel more than 100 miles if the party or party officer resides, is employed, or regularly transacts business in person in the state in which the trial is occurring.  Thus, party or party officer witnesses can be required to travel more than 100 miles to testify at trial if the travel remains in the state in which the party or party officer resides, is employed, or regularly transacts business.  Nonparty witnesses can only be compelled to travel more than 100 miles within the state where they reside, are employed, or regularly transact business in person only if they would not, as a result, incur “substantial expense.”  The advisory committee notes make clear, however, that litigants can continue to pursue depositions of parties, officers, directors and managing agents of parties simply by issuing a notice of deposition under Fed. R. Civ. P. 30, and that a subpoena is not required to depose these types of witnesses.  The amendment of Rule 45(c)(1) thus only constrains a party’s ability to compel testimony from a witness at trial and does not impact a party’s ability to notice depositions under Rule 30.

Similarly, Rule 45(c)(2)(A) was added to provide that in the case of subpoenas requesting documents or tangible things, the subpoena may only command “production” of documents, electronically stored information, or tangible things at a place within 100 miles of where the subpoena recipient resides, is employed or regularly transacts business in person.  This amendment is meant to decrease the burden on subpoenaed parties.  However, the committee notes allow for agreements on the place of production.  For example, if the serving party resides in Colorado and serves a person requesting production of documents in New York, if the subpoenaed person agrees to produce in Colorado, then there is no need to abide by the 100 mile rule.  Thus, it is in the subpoenaing party’s best interest to contact the subpoenaed person to determine whether an agreement can be reached on the place of production.

The amendments also add Rule 45(f), which authorizes the transfer of subpoena related motions (such as motions for protective order, motions to enforce, etc.) from the enforcement court (the district in which the subpoenaed party resides) to the issuing court (the court in which the action is pending).  Under the prior rule, this transfer was not available, which meant the enforcement court was frequently different from the issuing court, resulting in multi-district litigation merely over a subpoena.  Under the new rule, a transfer is permitted if the person subject to the subpoena consents to the transfer or under “exceptional circumstances.”  The committee notes identify considerations that may warrant transfer absent consent of the subpoenaed person, but only if they outweigh the interests of the subpoenaed person.  Amended Rule 45(g) (which amends what was previously 45(e)) also permits either the issuing court or the court where compliance is required to hold a person in contempt for failing to “obey the subpoena or an order related to it.”

Rule 37(b)(1) was similarly amended to add the following language:
If a deposition-related motion is transferred to the court where the action is pending, and that court orders a deponent to be sworn or to answer a question and the deponent fails to obey, the failure may be treated as contempt of either the court where the discovery is taken or the court where the action is pending.
This means that if a subpoenaed person does not comply with a court order for a motion that was transferred to the “issuing court,” a party can seek contempt sanctions against the subpoenaed person in either the issuing court or the court where the deposition is to be taken.  This is the only change to Rule 37.

Lastly, Rule 45 was amended to make the document subpoena notice requirement more prominent.  In 2007, Rule 45 was amended to require each party be given notice of a subpoena that requires document production before the subpoena was issued, but the committee determined that in practice, many attorneys were not following the rule.  So before a serving a subpoena for production of documents, the serving party must give notice to the other parties.  This requirement can be found in amended Rule 45(a)(1)(4) (the notice requirement was previously found in Rule 45(b)(1)).

Last Update: 2014-Feb-23 David R. Fine - Dentons
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Author: David R. Fine
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