Getting Started with Rule 45
Rule 45 of the Federal Rules of Civil Procedure governs the subpoena and service of a subpoena upon a third-party witness. It has previously been rewritten and revised; however, it is now a broader federal procedural rule made applicable to all federal civil cases and has effectively taken the place of the former individual rules (former Rule 17 (service of a subpoena by the United States), Rule 45 (subpoena), Rule 48 (return of subpoena), Rule 52 (in California). A subpoena can be for the attendance or nonattendance of a witness in a district court of the United States, or for the production and inspection of documents, electronically stored information or tangible things other than at a trial, hearing or deposition. In this regard it can now be said that a subpoena under Rule 45 is not only a witness subpoena but also a writ of production and inspection .
It has been variously stated that the subpoena is the means by which the federal courts secure the attendance of witnesses and the production of documents, electronically stored information, and tangible things from persons who are not parties to the litigation. It has also been said that it serves many functions, including the obtaining of records, where there is specificity as to the persons and documents sought. Subpoena practice is not specifically covered in the Federal Rules of Civil Procedure. As held by the courts, Rule 45 subpoenas have "neither teeth nor claws," however it provides a powerful tool for counsel in conducting discovery on third-parties. In addition to limiting the effect and scope of Rule 45 subpoenas, it additionally protects witnesses from overbroad subpoenas that go beyond the bounds of Rule 26(b)(1).
Serving Subpoenas pursuant to Rule 45
Federal Rule 45 is the means by which to compel the attendance of a non-party or produce documents for litigation. The subpoena may be issued from a court for the district where the action is pending. However, the district court can issue a subpoena for the district where a deposition will be taken. FRCP 45 (a)(2)(A)-(B). A party may issue a subpoena without leave of the court if the subpoena is used within the county where the trial is conducted or the deposition of a non-party resides. Id. The subpoena is for either the attendance of a witness, attendance of a non-party, or the production and inspection of documents or goods. FRCP 45 (a)(6)-(7). A third type of subpoena is for a command to appear at a deposition. FRCP 45 (a)(1)(C). "A subpoena may be served in the district where the action is pending or, if the record or tangible things subpoenaed are located outside that district, where the [record or tangible things] are found." FRCP 45 (c)(2)(A). When a subpoena commands the production, inspection or copying of documents, electronically stored information, or tangible things, it may be served at any place in the United States. FRCP 45 (c)(2)(A)(ii).
An attorney may also issue a subpoena and it need not be issued by the clerk of court. FRCP 45 (a)(3). The attorney’s name, firm, address, telephone number and email address must be listed on the subpoena. Id. An attorney issuing a subpoena shall sign it. FRCP 45 (a)(3)(B). "The court for the district where compliance is required . . . may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena. . . ." FRCP 45 (g).
Different Kinds of Subpoenas
A deponent may be required to attend a deposition at a specific place and time pursuant to a notice of deposition or subpoena for oral deposition. A non-party witness can be served with a subpoena requiring his or her attendance at a specific place and time for a deposition. Once served, that witness may simply rely on the instructions provided on the face of the subpoena. A party may also serve a subpoena on a non-party to compel production of documents and things. Such a subpoena must be issued from the court in the district where the production is sought. Furthermore, the subpoena must state a specific time and place for the production, if possible. Finally, the place where the production is required must be within 100 miles from the place of attendance. Rule 45 also states that if a subpoena requires someone to produce documents, electronically stored information, or tangible things, and permits inspection, copying, testing, or sampling of materials, and if the materials are made available for inspection in the district where the person either regularly transacts business in person or at a specified location, then the place of production may be the residence, but only if the materials would be in substantially the same condition if the party entitled to them inspected, copied, tested, or sampled them at the residence. However, if the subpoena requires the production at a place outside such a range, then the court must grant the issuing court the authority to quash or modify the subpoena upon a timely motion which asserts an undue burden or other similar reason. Finally, a non-party may also be served with a subpoena commanding the non-party to permit inspection of tangible things. This type of subpoena must include topics for inspection and testing, as well as designate the materials to be inspected.
Responding to and Objecting to Subpoenas
The rule specifies that a recipient of a subpoena must comply with the requirements of the litigation. However, as with many rules, there is an exception. A recipient may also object to compliance. If a party believes that a recipient has been improperly subpoenaed, the party may object to that subpoena and may move to quash—or void—the subpoena prior to compliance. A party on the receiving end of a subpoena has 14 days to object to the subpoena from when that person or entity receives the subpoena.
A motion to quash or modify a subpoena requires that the moving party serve notice to all parties in the action. Once that motion is filed, the issuing party has a duty to respond. The responding party or individual must file a motion to compel compliance with the subpoena by 14 days after receiving notice.
If the court grants the motion to quash the subpoena, the issuing party may pursue relief in a number of ways. Even if the issuing party does not warrant the subpoena to be reissued, that party may be able to pursue other legal remedies, including filing a motion of sanctions based on the objection.
If the court eventually determines that a subpoena should be enforced, it may issue an order. If the responding party or individual still does not comply with a subpoena after court adjudication, that biased party may be held in contempt of court.
Enforcement of Rule 45 Subpoenas
A party served with a subpoena has an affirmative obligation to comply with it unless subsequently quashed or modified by the court. If a party, on whom a Rule 45 subpoena has been served, refuses to produce documents requested in the subpoena, the party who served the subpoena shall petition to the court for enforcement of the subpoena requiring production of the documents. The subpoena shall be enforced promptly if the court finds that the subpoena is reasonable, sees no inteference with proceedings, and is not unduly burdensome.
If the action is pending before the district court in which the subpoena was issued, then the district court has the authority to enforce the subpoena. Fed. R. Civ. P. 45(d)(2). In the case of a pretrial subpoena, a court of competent jurisdiction, where the discovery is being conducted, shall have the authority to issue an order for enforcement of the subpoena . Fed. R. Civ. P. 45(d)(2). If the enforcement issues fall within the patent laws, relief may be sought by the party seeking enforcement from the district court for the district in which the action is pending.
The party who served the subpoena bears the burden of establishing jurisdiction over the person to whom the subpoena was directed and the initial burden of providing justification for imposing a duty on the subpoenaed parties. The party who served the subpoena is entitled to an award of expert witness fees and attorney fees from a third party who is subpoenaed pursuant to Fed. R. Civ. P. 26(b), 2001, and Fed. R. Civ. P. 45, 1991, where the expert witness testimony is obtained for the convenience, benefit, or request of the subpoenaed party.
Recent Changes and Developments
In 2013, Federal Rule 45 was amended in an effort to streamline issues related to subpoenas. Though the amendments were not as sweeping as those passed in 2013 to the Federal Rules of Civil Procedure, they were significant nonetheless and are important to be aware of.
Specific exemptions
One major change to Rule 45 is the addition of language in Rule 45(d)(3) that explains when a party may object to a subpoena, namely: by asserting an exemption. The exemptions can be divided into three categories: 1) The Court can’t compel the party or a person to travel such a long distance that it will create an undue burden; 2) The subpoena seeks disclosure of privileged information or other protected matter; and 3) The subpoena fails to allow a reasonable time to comply. Of course, this isn’t an exhaustive list. There are other exemptions including if the court should quash or modify the subpoena to (1) protect a person from significant expense, or (2) protect a person from an undue burden or expense of serving a subpoena on a non-party who doesn’t have a material relationship to the case.
Additional changes to Rule 45
Additional changes include language stipulating that the amendments are effective May 1, 2013 (Rule 45(t)(1)); a requirement that the issuing (explaining) party must "designate" a person authorized to act on its behalf in connection with the subpoena (Rule 45(b)(1) and Rule 45(d)(1)); a directive that the issuing party must take reasonable steps to avoid imposing an undue burden or expense on a person subject to a subpoena (Rule 45(d)(1)); a change to how things are served (Rule 45(b)(1)); a clarification that objections must be served in writing (Rule 45(d)(2)(B)). Overall this is simply a useful reminder that, just like the other rules of civil procedure, Rule 45 is not static.
Practical Considerations for the Practitioner
The following are practical tips for practitioners in both issuing and responding to subpoenas:
Issuing Subpoenas:
Should you issue a subpoena for the deposition of a corporate entity, it may be best practice to include the separate proofs of service on both the corporate entity’s registered agent (often the Secretary of State) and the corporate entity itself. There is authority that a subpoena issued to a corporate entity, which is served only on its registered agent, is compliant with Rule 45.
Should you have multiple areas that you discover require production, do not hesitate to issue a second or third subpoena. If you anticipate there are missing documents, it may be best to issue a subpoena specifically targeting those documents.
Service of a subpoena is complete upon deposit in the U.S. Mail, therefore mail service is effective service on the custodian of records of any entity.
Responding to Subpoenas:
Any objections must be made within the time allotted for responding to the subpoena.
If you are unsure with regard to any aspect of the subpoena , send a letter to the requesting party objecting to the disputed issue within the response timeframe. Also, be specific with regard to the objections.
If an objection is based on privilege, a privilege log is required for each document listed in a subpoena. The privilege log must comply with Local Rule 37.1(c)(3)(D) in the United States District Courts for the Central District of California.
When objecting to a deposition, you may consider attending the deposition regarding which you object without waiving your objections.
If you are unable to deliver business records to the requesting party, even after diligent search / good faith effort, you must produce a declaration from the custodian of records stating that a diligent search was conducted.
Be sure to understand that "all" documents responsive to the subpoena is relatively broad and may include all correspondence dating back to the beginning of the underlying dispute.
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