New Rules for Subpoena Practice

Ian S. Mullet Craig R. Smith

Effective December 1, 2013, the rules governing subpoena practice in federal district court litigation have been significantly changed. Subpoenas are used frequently in district court litigation to obtain discovery from third-parties. Rule 45 of the Federal Rules of Civil Procedure govern subpoenas. The new amendments to Rule 45 help clarify and simplify the issuance and enforcement of subpoenas.¹ The key changes to Rule 45 are:

• A subpoena must be issued from the court where the litigation is pending, instead of where the person resides;
•  A subpoena can be served anywhere in the United States;
• The protections afforded to a person receiving a subpoena have been clarified; and
• The court where compliance with a subpoena is required may transfer a subpoenarelated motion to the court where the litigation is pending on consent of the person subject to the subpoena or in exceptional circumstances.

These changes should benefit both attorneys who have to issue subpoenas and the people who receive them.

First, issuing and serving a subpoena on a third-party in litigation has been simplified. Previously, the court issuing a subpoena often differed from the court where the litigation was pending. For example, a subpoena requesting a deposition of a non-party would issue from the court in the region where the person resides, not the court where the litigation is pending. Under new Rule 45(a)(2), this complication is removed by now requiring that a subpoena issue from the same court where the litigation is taking place.

Second, a subpoena may be served anywhere in the United States under Rule 45(b)(2). Under the old Rule 45, service was proper only within certain geographical regions, for example, within the district of the issuing court, and these regions could be expanded only through an authorized motion. By allowing service anywhere in the United States, the current amendment eliminates complications associated with determining where service is proper.

Third, the new subpoena rule clarifies the protections afforded to a person receiving a subpoena. Rule 45(c) protects a person from being required to attend a trial, hearing, or deposition more than one hundred miles from where the person resides, is employed, or regularly transacts business in person.

Finally, the new rule allows a court to transfer a subpoena-related motion to the court where the litigation is pending, if the person subject to the subpoena consents. Thus, if convenient to both sides, Rule 45(f) may simplify the proceedings by having the same court where the litigation is pending also decide subpoena-related motions.

For those involved in district court litigation, it is important to review Rule 45 and the changes it makes to the subpoena process. Many of these changes should help simplify the process of issuing and serving subpoenas.

¹ The entire text of Rule 45, along with the official Committee Notes on the 2013 Amendment, is available for free at: http://bit.ly/J7TcMW.