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Changes to Federal Rule 45 are first in more than 2 decades

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For the past several years, who could be compelled to appear at a federal trial depended on whom you asked.

Two rulings from the U.S. District Court for the Eastern District of Louisiana offered two different interpretations of the same federal rule. One court in the Bayou State read Rule 45 of the Federal Rules of Civil Procedure as giving broad subpoena powers, and another court asserted the language actually limited judicial authority.

While such a split in a single district court is not unusual, it does provide grounds for legal fights and, in this instance, was specifically addressed in an amendment to the rule being proposed by the Judicial Conference of the United States.

craig-darren-mug Craig

The amendment is part of a larger revision to Rule 45 which attorneys say will simplify the process of serving subpoenas. This is a long, complex and cumbersome rule of which some provisions have been described as “hyper technical” and others have been mostly ignored altogether.

Although the first significant changes to Rule 45 since 1991, the amendments are not controversial or expected to dramatically affect litigation by giving advantages to one side or another.

Instead, said Jeff Gibson, partner at Cohen & Malad LLP, these proposals simply clarify the rule and streamline the subpoena process.

They will also clear the confusion over the rulings from the Eastern District of Louisiana. As John Maley, partner at Barnes & Thornburg LLP, explained, anytime the courts split that just “gives we lawyers something to argue about.” And where there is fighting over procedural matters – which this split certainly spawned – that distracts from the merits of a case and causes delays as well as additional costs.

At issue in Louisiana was whether the court could issue a subpoena requiring a party or a party’s officer to travel more than 100 miles to testify at trial. The two courts in the Eastern District offered divergent readings of Rule 45(b)(2) and Rule 45(c)(3)(A)(ii).

During In re Vioxx Products Liability Litigation, the question was raised whether an executive of Merck & Co Inc. who worked in New Jersey could be compelled to testify at the trial in New Orleans.

The court found the interplay between the two provisions gave it the authority to expand the subpoena powers beyond the 100-mile radius. In particular, it pointed to language in Rule 45 which stated the court must quash or modify a subpoena that required compliance by an individual who must travel more than 100 miles and “who is neither a party nor a party’s officer.”

Agreeing with the plaintiff, the court decided the wording permitted the inverse inference that parties in federal litigation and their officers could indeed be forced to travel more than 100 miles to appear at trial.

While this decision subsequently became the majority rule, a few years later a court in the same district disagreed, noting to reach the conclusions offered in the Vioxx decision, “the Court would have to turn a clause intended as limiting clause on its head and ignore the territorial restrictions on where a trial subpoena may be properly served.”

In Johnson v. Big Lots Stores, Inc., the court took a different reading of the two provisions, focusing on the phrase “subject to” in Rule 45(c)(3)(A)(ii). Such a phrase, the court pointed out, ordinarily limits a power or right rather than expanding it.

Thus the court found that Rule 45(b)(2) limits the places in which a subpoena may be served and that Rule 45(c)(3)(A)(ii) functions to limit the court’s subpoena power.

Under the proposed changes to Rule 45, the Vioxx ruling would essentially be overturned. The amendment agrees with the interpretation in the Big Lots Stores decision that the language was not intended to expand the subpoena power. It clarifies that a subpoena for trial cannot require a party or party officer to travel more than 100 miles unless that individual resides, is employed or regularly transacts business in person in the state where the trial is being conducted.

Other changes proposed to Rule 45 designate which court issues the subpoena, outline the conditions for allowing a subpoena-related motion to be transferred, and provides the procedure for issuing a “documents only” subpoena.

The Standing Committee on Rules of Practice and Procedure of the Judicial Conference of the United States proposed the amendments in June following a multi-year study and period of public comment.

maley-john-mugNew013013 Maley

In September, the Judicial Conference approved the changes and the proposal was forwarded to the Supreme Court of the United States. The high court has until May 1 and if it gives approval, the proposal will be forwarded to Congress which has until Dec. 1 to approve or reject.

Attorneys do not anticipate the changes being rejected at any point and believe the new amendments will take effect at the beginning of December.

Among the proposed amendments to Rule 45 is one that will address which court issues the subpoena. Currently, the subpoena must be issued from the district where the individual or documents are located which, the advisory committee noted, creates a three-ring circus of challenges for the lawyer seeking to use the subpoena.

The new rule eliminates the circus by requiring the court where the action is pending to issue the subpoenas throughout the U.S.

In the age of global business and multiple offices, the proposed changes make the task of subpoenaing documents easier, said Darren Craig, partner at Frost Brown Todd LLC. Not only can finding the appropriate corporate office be difficult, the search becomes trickier when the documents are electronically stored.

When motions to quash the subpoena are filed, the court in the district where compliance is required will be the enforcement court. However another change to Rule 45 allows the enforcement court to transfer the subpoena-related motions back to the court where the case is pending under two conditions.

First, the non-party consents to the transfer. The second condition is what the rule terms “exceptional circumstances.”

Although many raised concerns during the public comment period about allowing “exceptional circumstances” when a non-party witness does not consent to transfer, the committee retained the “exceptional circumstances” standard. Yet, it did not define an “exceptional circumstance.”

“I think it’s fair to say ‘exceptional circumstances’ will be rare and not the rule,” Craig said. “Under the amendment, the goal of Rule 45 is to allow access to documents without placing an undue burden on non-parties.”

Maley believes with the new authority to transfer, the enforcement courts will turn the matter over to the court where the case is pending. Judges, he said, are not likely to want to spend time on a case they do not know and on matter that can easily be handled by the pending court.

The final change to Rule 45 is largely cosmetic. The provision requiring that “documents only” subpoenas be served on all parties before serving the non-party remains the same. In its report, the committee acknowledged this section is frequently not obeyed and often documents are obtained by subpoena without notifying the other parties. This, in turn, can lead to surprises and arguments before and during trial.

To solve those problems, the committee made the provision more prominent by relocating it to its own section and giving it a new heading.•

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