By Ryan K. Meyer

Rule 45 of the Federal Rules of Civil Procedure addresses the ability of federal court litigants to obtain relevant information from individuals or entities that are not parties to the litigation. This generally involves the issuance of a subpoena directing the recipient to appear to testify and/or to produce documents. A non-party may be quite surprised to receive a subpoena in a case with which it has no involvement which is being conducted in another state, but the subpoena cannot be ignored. Likewise, when involved in federal court litigation, it is important for a litigant to know what information it can obtain from third parties, and how this must be done.

This article will provide some basic information regarding recent changes that have been made to Rule 45.

Technology has changed the way parties store and transfer information in recent years, which in many ways rendered the previous version of Rule 45 outdated. The last substantial changes to the Rule were made in 1991. Minor changes were made in 2005, 2006, and 2007, but they did not address the larger problems with the Rule. There are four significant changes under the new amendment to the Rule, which are meant to address these problems and to clarify the ambiguities that existed under the old Rule.

First, a subpoena must now issue “from the court where the action is pending.” Fed. R. Civ. P. 45(a)(2). Under the previous Rule, this was not necessarily the trial court in which the action had been filed. In fact, courts had particular difficulty deciding which court must issue a subpoena for the production of documents. Courts had interpreted the Rule to mean (1) the place where the documents are located, (2) the location of the custodian of the documents, and (3) the place where the documents will be delivered. Under the new Rule, the subpoena will only issue “from the court where the action is pending.” For example, if a case is pending in Kansas and the plaintiff needs to subpoena documents in New Jersey, the Kansas court would issue the subpoena.

The second significant change incorporates nationwide service of process for a subpoena. The Amendment eliminates former subsections of the Rule that imposed a 100-mile jurisdictional limit on subpoenas commanding the production of documents. Under the new Rule, a subpoena requesting documents may be served at any place within the United States. However, the new Rule leaves in place the 100-mile limitation for subpoenas commanding attendance at a hearing, trial, or deposition.

The third significant change introduced by the Amendment is the addition of new subsection (f). This addition to the Rule makes it clear that it is possible to transfer a subpoena-related motion to the trial court (now called the issuing court) if the person subject to the subpoena consents or if the court finds exceptional circumstances. Subsection (f) provides:

When the court where compliance is required did not issue the subpoena, it may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. Then, if the attorney for a person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court. To enforce its order, the issuing court may transfer the order to the court where the motion was made.

It is unclear how “exceptional circumstances” will be interpreted by the courts. But it will presumably be a high standard that is difficult to meet.

Last, the previous version of Rule 45 required the issuer of the subpoena to give notice to other parties when serving a subpoena for the production of documents or electronically stored information before trial. Despite this requirement, notice was often not provided. In order to make compliance with the notice requirement more likely, the notice requirement is stated in its own separately-numbered paragraph.

A party receiving a subpoena under Rule 45 may have grounds to object to the subpoena, or to limit what must be produced. Upon receiving a subpoena, a party would be wise to consult legal counsel regarding its response obligations.