What Is Federal Rule of Civil Procedure 45?
Federal Rule of Civil Procedure 45 is a federal law that, among other things, governs the issuing and compliance with subpoenas. For over 70 years, from 1970 to 1980, Rule 45 only addressed subpoenas prompting the Supreme Court and the Advisory Committee to add enforcement provisions set forth at Rule 45(c)-(g) and which became effective on December 17, 1985. The 1991 amendments to Rule 45 provided a uniform national standard for the production of documents by third parties in depositions, which replaced "state" standards with a single federal rule covering all proceedings. Part (d) of the Rule outlines the duty of the issuing party to "take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena" and the required action if a subpoena imposes an undue burden or expense upon a person subject to the subpoena in (c)(2). The 2008 amendments attempted to bridge the gap between federal, state, and other courts to clarify the language and eliminate ‘unintended ambiguities’ in the rule. 2008 amendments to Rules 5 and 45 also replaced the term ‘subpoena duces tecum’ with ‘subpoena for production or inspection.’ Further , it provides the ability to give notice of a deposition when the officer has not yet issued the subpoena for the deposition and eliminated the need for the issuing court to issue a subpoena. The 2013 amendments added language regarding the special protections afforded to parties or attorneys who issue a subpoena. Additionally, it clarified the limitations on subpoena power beyond the issuing district and added provisions that specify the format of electronically stored information (ESI) when produced by subpoena. Further amendments in 2014 added requirements that the subpoena must be specific as to the time, place, and specific documents requested, and to provide sufficient time (at least 14 days) for the production of electronic documents. Subpoenas are generally used to obtain copies of documents or testimony from non-parties, i.e. an entity or individual who is neither the plaintiff nor defendant in the case before the court. When compelling testimony, a witness will have the right to be represented by counsel and to seek protection from the court by filing a motion to quash or modify the subpoena to protect themselves from harassment or improper inquiry.
Rule 45’s Reach and Limits
Rule 45 of the Federal Rules of Civil Procedure allows a party to issue a subpoena, a written legal order requiring the production of documents and/or appearance at a deposition or trial. Rule 45 contains several types of subpoenas, though civil litigators typically use two: (1) a subpoena for the production of documents and electronically stored information in the possession, custody, or control of a non-party within 100 miles of the place of trial; and (2) a subpoena to testify. Subpoenas for the production of documents or electronically stored information direct the recipient (typically a third party) to produce documents or electronically stored information for inspection at a time and place set forth in the subpoena.
Certain parties may issue subpoenas to compel another party or a nonparty to produce documents or electronically stored information from a nonparty or appear at a hearing or deposition. While a plaintiff may issue a subpoena requiring a nonparty to produce documents or electronically stored information or appear at a deposition, a defendant may only issue a subpoena requiring the testimony and documents of a nonparty or a party. The scope of a subpoena under Rule 45 is similar to that of discovery available under Rule 34. (Because a subpoena compelling a nonparty to produce documents could have been achieved by a Rule 34 request for production served on a party, these types of subpoenas offer little value. When serving a subpoena on a party, it is important to note that the subpoena should be issued in the name of the court where the action is pending and must state the court from which it issued. Additionally, a subpoena will not be effective if it compels production in advance of the Defendant’s Rule 26 disclosures or included in the initial disclosures). Subpoenas may command the production of documents or electronically stored information without describing the records at issue with reasonable particularity. In industry jargon, Rule 45 is the "go to" rule for litigators seeking the testimony and documents of individuals, particularly those who are not litigating parties.
Under Rule 45, the court must quash or modify a subpoena that "requires disclosure of privileged or other protected matter, if no exception or waiver applies," or "subjects a person to an undue burden." When determining whether a subpoena imposes an undue burden, courts determine whether the burden outweighs the likely benefit under the circumstances. In federal courts, trial courts construe the scope of a subpoena broadly, with the burden on the moving party to show how the burden outweighs the anticipated benefit of disclosure. The federal court will not quash a subpoena requiring the production of documents or electronically stored information if an objection is based on vague, overbroad, or lack of specificity grounds. A court does not quash a subpoena requiring a nonparty to produce a multitude of documents if the party does not object, but, instead, will evaluate whether the party should the requested materials.
While a district court and magistrate can enforce only Rule 45 subpoenas issued from their own districts, a party who requires the production of documents or electronically stored information in a district that lacks competent jurisdiction over the non-party can issue a subpoena in any district to compel the non-party to produce in the district that does have jurisdiction over the non-party. The subpoena power of the issuing court permits an interested party to compel production of documents by non-parties in possibly inconvenient or distant locations. (For example, Rule 45 permits a party in Brooklyn to issue a subpoena to a non-party in Wisconsin). A party who desires to take advantage of this rule must consider the location of the nonparty, but also whether the state in which the litigation takes place and the state in which the nonparty resides would permit enforcement of the subpoena under analogous state rules. Unlike the Rule 34 production of documents, there is no need for a meet-and-confer prior to service of a Rule 45 subpoena as Rule 45 subpoenas are not subject to the meet-and-confer requirements imposed by Rules 26 and 34.
A motion to quash the subpoena may be filed in the district where compliance is required or in the district where the trial is pending. Under Rule 37, if the party serving the subpoena does not move for the appropriate order, either the court where compliance is required or the court for the district where the action is pending has the power to do so. Finally, although the district judge may issue a motion to quash or limit, only the issuing judge may issue an ex parte order to protect a party from annoyance, embarrassment, oppression, or undue burden or expense as provided under Rule 45(d)(3)(i).
Many litigators struggle with the appropriate procedure and timing for the issuance of subpoenas, particularly the subpoena duces tecum. Subpoenas are a powerful tool for accomplishing disclosure in civil litigation, but they are not without risks.
Issuing Subpoenas
The process for issuing a subpoena under Rule 45 is straightforward, but must be carried out correctly to be enforceable. Any attorney authorized to practice in the issuing court may issue and sign a subpoena commanding attendance and testimony. Under Rule 45(b)(1), a subpoena must be issued by the clerk of court, by the court, or by an attorney authorized to practice in that court. Fed. R. Civ. P. 45(a)(3). Even if a subpoena is issued at the request of a state court, "if it is to issue from another district court, it must comply with the procedure set forth in Rule 45(a) and must be served in the way provided in Rule 45(b)(2) for service of a subpoena." Henry v. Champlain Enters, Inc., 212 F.R.D. 73, 75 (N.D.N.Y. 2003) (quoting Pets Hotel, Inc. v. Mendoza, 2001 WL 893802, at *2 (S.D.N.Y. 2001)). In addition to the service provisions of Rule 45(b)(1), the rules further require that "[s]erving a subpoena requires delivering a copy to the named person and, if the subpoena requires the person’s attendance, offering the requisite fees for on-day’s allowance for the time and travel." Fed. R. Civ. P. 45(b)(1). If the subpoena commands the production of documents, electronically stored information, or tangible things, Rule 45(d)(2)(B)(i) mandates that the requesting party in the issuing court "step into the shoes" of the third-party subpoena recipient and bears the burden of explaining to the court why the subpoenaed materials should be produced by the third-party. Horn & Assocs., Inc. v. Mintel Learning Tech., 655 F.Supp.2d 794, 801 (N.D. Ill. 2009); In re: Randall S. Newman, 517 B.R. 56, 65 (Bankr. N.D. Texas 2014). Conversely, the opposing party may seek to quash a subpoena via a motion in the originating court, or the issuing court may quash or modify a subpoena when it "either does not provide adequate protection for a persons who is neither a party nor an officer of a party … or requires disclosure of privileged or protected matter." Fed. R. Civ. P. 45(d)(3)(A)(ii)-(iii). There is no limit to the number of depositions or document requests under Rule 45. See Fed. R. Civ. P. 30 advisory committee’s note ("From the serving of the subpoena to the time set for compliance, a party can take as many depositions as it wants.").
Responding to a Rule 45 Subpoena
The Rules distinguish between the types of documents that are requested. If the subpoena seeks the production of documents, the person or party must produce those items (other than those that have been exercised under an objection) or the party must move to quash or modify the subpoena or move for a protective order under these Rules (Demand for Production of Documents in accordance with the provisions of Rule 45, Federal Rules of Civil Procedure, 9 Moore’s Federal Practice – Civil § 45.50 (Matthew Bender)).
If the subpoena commands attendance of a witness or prescribes a place within the state in which the trial is pending for his or her deposition, the subpoena must specify the date and time of the commencement of the examination, whether it is to be continued from day to day until finished and the particular books, papers, documents or tangible things you wish the person to produce and permit inspection. (Fed. R. Civ. P. 45(c)(1)). Failure to comply with the subpoena may be punished as contempt of court by an order or judgment given by the court compelling attendance or production or both, or by fine or imprisonment, or both. (Fed. R. Civ. P. 45(c)(2)(i)).
The person or party receiving the subpoena may object to the requirements set forth. (Fed. R. Civ. P. 45(c)(2)(B)). This is done by appearing at the place of compliance and serving written objections before the time specified for compliance. The objections must contain specific grounds. Additionally, the objection must be served upon the person who issued the subpoena. (See Fed. R. Civ. P. 45(c)(2)(B)-(C)). A person who unlawfully serves a subpoena will be required to forfeit and pay a fine of at least $500. (Fed. R. Civ. P. 45(g)).
A motion to quash, modify or condition the subpoena may be possible. (Fed. R. Civ. P. 45(d)(3)(A)). A motion to quash or to modify a subpoena should be made in the district in which compliance is required, if the subpoena is a command to produce materials, or at the district court for the district for compliance if the subpoena is a command to testify, if the subpoena involves non-parties. (Fed. R. Civ. P. 45(d)(3)(B)). But if the subpoena is to appear at a deposition, the testimony of a party or an officer or an employee of a party or compliance with a Rule 34 request for inspection, the motion should be made in the district where the action is pending. (Fed. R. Civ. P. 45(d)(3)(B)).
The Rule also states that a motion to compel and for sanctions may be taken against the attorney advising the issuance, the issuing attorney or both. (Fed. R. Civ. P. 45(d)(1)).
Getting a Subpoena Enforced and Fending Off an Unwanted One
Upon receiving a subpoena related to discovery or trial, the recipient may demand that the issuing party "take reasonable steps to avoid imposing undue burden or expense." Federal Rule of Civil Procedure 45(d)(1) states, "A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena. The issuing party must defend against a motion for an order to quash or modify the subpoena served on a nonparty or to whom a subpoena was previously delivered, who fails to produce documents, electronically stored information, or tangible evidence." This means that if you are issued a subpoena, you should respond with objections, if any apply, and demand that the party issuing the subpoena take reasonable steps to avoid imposing undue burden upon you. If the party issuing the subpoena does not agree to do so, then it is time to consider a motion to quash or modify.
When a party issues a subpoena for documents, electronically stored information, or tangible evidence and the recipient does not comply, the issuing party may petition the court for an order compelling compliance. Federal Rule of Civil Procedure 45(g) states, "The court for the district where compliance is required…may hold in contempt a person who, having been served with a subpoena, fails without adequate excuse to obey the subpoena or an order related to it." One who fails to appear in response to a subpoena may also be held in contempt and ordered to pay the appropriate fines, whether or not there is a motion to compel filed with the Court. In such a situation, the Court may issue a fine, although "if the contempt is civil , the court may order the defendant to comply with the subpoena…or pay a fine per day until it complies" with the subpoena.
Federal Courts may order sanctions to remedy abusive discovery or contempt of a subpoena even if a party did not make a prior formal request for such relief pursuant to Federal Rule of Civil Procedure 37. The California Circuit Court has "authority to impose sanctions pursuant to its inherent powers, without regard to any of the procedural limitations of the discovery rules." It is important to keep in mind that in evaluating allegations of contempt of the Court’s order, the Court will apply a lesser standard of willfulness when a movant makes a prima facie case that noncompliance with a prior order of the Court occurred. In such a case, a party may show less than total disregard for the authority of the Court in order to establish a sufficiency of willfulness.
Seems simple enough, if one person gets angry at a subpoena, the Court will force them to hand it over. But not so fast. There is an additional layer of review before the Court will entertain enforcement of a subpoena. Most federal courts in the United States have a designated Individualized Discovery Coordinator ("IDC"), a third-party neutral appointed by the Court to handle discovery disputes. The issuance of a subpoena or response thereto must be brought to the attention of the designated IDC before filing with the Court.
Practical Note: Courts employ these third-party neutrals so that parties are not forced to bear the expensive cost of litigation, even if the subpoena was improperly issued or improperly responded to. Discovery disputes can often be solved without resort to expensive attorneys’ fees, allowing the parties to resolve discovery disputes more efficiently and in a manner that most suits their needs. These neutral third-parties are acceptable substitutes to Court intervention and provide a central repository of issues for the Court to consider so that the Court need not address every discovery dispute, but only the ones that cannot be resolved.
Privacy Considerations and Ethical Issues
The complexities of civil procedure are furthered with consideration for the privacy issues that nearly all aspects of litigation generate. The issuance of a subpoena or a subpoena due to Rule 45 must be balanced against potential privacy concerns.
It is not unusual for entities, through state and federal law, to limit the disclosure of certain information. For example, drug and alcohol rehabilitation services are barred from disclosing patient information due to the federal Department of Health and Human Services (HHS) and the Substance Abuse and Mental Health Administration (SAMHSA). Likewise, certain protected health information (PHI) is safeguarded through additional state and federal laws. The Health Insurance Portability and Accountability Act (HIPAA) provides a set of baseline regulations for the protection of PHI and the confidentiality of healthcare information.
Obligations under other laws must be balanced against the parties’ interests in disclosure of information, so that proper decisions can be made regarding the issuance and enforcement of subpoenas. Under Rule 45 the duty falls to the person or entity whom has received the subpoena to object to it or seek a protective order that would prevent disclosure. Required responses and disclosures include: written objections; documents and things to be produced at designated places; testimony by deposition; and testimony at hearing or trial.
The objections must be made in writing or in person to the person who issued the subpoena, but are not permitted to be made to the court which issued the subpoena. Objections must be made with these particularized statements related to the issuing of the issuer of the subpoena: (a) privilege against disclosure of the information sought; (b) unreasonableness or oppression of the subpoena; and (c) that the information is to be sought from an organization. A protective order can be issued by the court to quash any subpoenas which require non-party depositions, require the production of certain documents or subject such documents to the review of the producing party.
With regard to parties in litigation, the appropriate response is to seek a protective order for the disclosure of communications protected by attorney-client privilege or the "work product" commonly known as the prosecution or defense of a suit. There are also laws that protect from discovery some personal information where much deference is accorded to reasonable expectations of privacy including: medical records, psychotherapy records, sexual harassment complaints, etc.
Recent Rule Changes and Case Law
Among the recent developments concerning Federal Rule of Civil Procedure 45, the Advisory Committee approved a proposal to amend the rule in 2018 or, perhaps more optimistically, by December 1, 2019. Under that proposal, which will be the first rule amendment in over a decade, a party may have a subpoena issued to command attendance at a deposition or trial only by a magistrate in the district where the action is pending (or where the court lies "for production or inspection"); a subpoena for trial or deposition to a nonparty in the geographical reach of the issuing court would be issued by that court’s clerk. Other changes to Rule 45 are also proposed, including a suggestion to clarify that the issuing court has discretion to enforce a subpoena, as well as a change on how courts treat objections to a subpoena, specifying that on a motion to quash a subpoena, it is the serving party’s burden to show that the requested information is unreasonable or oppressive.
Federal Rule of Civil Procedure 45 was amended significantly in 2013, and the accompanying advisory committee note explains that "those changes were intended to be a comprehensive attempt to address all the cruft that has accumulated over the years." Despite the wording of the note, however, the "cruft" has continued, and the fact that amendments are already contemplated by at least one member of the advisory committee may underscore the view of some that Rule 45 is broken beyond repair .
Recent interpretations of Rule 45 have continued to address the production of documents in electronically stored information (ESI) and whether a party can compel ESI from an inaccessible source (under FRCP 26(b)(2)(A)-(C)). One recent decision in the U.S. District Court for the District of Minnesota construed "undue burden" as sometimes requiring a balancing test. In Rogers v. Giannini, the court held that the elements to be weighed in the proportionality determination are the cost of discovery and the benefit likely to be gained from the proposed discovery, holding that in weighing the costs against the benefits in this case, the $150.00 to $1,000.00 was disproportionate when considered with the likelihood that only a few social media posts were relevant to the issues in the case. The court further ruled that the defendant could not compel the plaintiff to produce any social media discovery as the Request was disproportionate and unduly burdensome toward the plaintiff.
Additional recent cases reflect differing approaches, and diverging views on the application of Rule 45, particularly as it relates to ESI and the expanding technological issue of social media. Several courts have highlighted that a party’s proportionality arguments in opposition to producing metadata and other ESI must include concrete and specific information to allow the court to perform its duty to balance the alleged burden of production against the utility and relevance of the discovery requests.
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