Changes to Rule 45 Federal Subpoena Procedure Effective December 1, 2013

by King & Spalding
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Changes to the federal procedures governing subpoenas will become effective December 1, 2013, absent further Congressional action. Four key changes will be:

Power to Issue Subpoenas Consolidated to Court Where Case Is Pending and Nationwide Service Permitted. All subpoenas for a case pending in federal court will issue from the court in which the case is pending (the "issuing court") under the new Rule 45(a)(2). Under the new Rule 45(b)(2), a subpoena may be served at any place in the United States.

Territorial Limitations In Place for Nonparty Witnesses for Trial, Hearings, and Depositions. Despite the simplified procedure for issuing and serving subpoenas, the subpoena power of district courts is still subject to territorial limitations. For subpoenas issued to nonparty witnesses for hearings and depositions, the subpoenas can only require that a person travel within 100 miles of where "the person resides, is employed, or regularly transacts business" under the new Rule 45(c)(1)(A). For appearance at trial, however, a subpoena can compel a nonparty witness to appear if that person's appearance would either comply with the 100 mile rule or if appearance would require travel within "the state where the person resides, is employed, or regularly transacts business in person," as long as the witness will not incur "substantial expense" under Rule 45(c)(1)(B)(ii).

Territorial Limitations Also Apply to Parties and Party Officers for Trial, Hearings, and Depositions. The new Rule 45 also imposes territorial limitations on compelling parties and party officers to appear for a trial, hearing or deposition. Under the new rule, they can be compelled to appear only within 100 miles, or within "the state where the person resides, is employed, or regularly transacts business in person." Rule 45(c)(1)(A). Significantly, a party or a party's officers can no longer be compelled to travel across country to appear. According to the Advisory Committee Notes, this provision is intended to make clear that a party or a party's officers cannot be compelled to attend trial at a location that does not meet these requirements.

Motion to Quash or Modify a Subpoena To Be Determined By The Court Where Compliance is Required, But May Be Transferred to The Issuing Court. A motion to quash or modify a subpoena can be heard by the district court where compliance by the subject is required rather than the issuing court under Rule 45(d)(3). However, the court where compliance is required may transfer such a motion to the issuing court if either (1) the person subject to the subpoena consents, or (2) exceptional circumstances exist. Rule 45(f). The Advisory Committee Notes state that the primary consideration for a court deciding whether to transfer should be avoiding burdens on the nonparty subject to the subpoena. If the subpoena-related motion is transferred to the issuing court, the attorney for the subpoenaed person will be allowed to "file papers and appear on the motion as an officer of the issuing court" as long as the attorney is authorized to practice in the court where the motion was made.

- Kevin M. Dinan, kdinan@kslaw.com

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