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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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  1. I have been on this program while on parole from 2011-2013. No person should be forced mentally to share private details of their personal life with total strangers. Also giving permission for a mental therapist to report to your parole agent that your not participating in group therapy because you don't have the financial mean to be in the group therapy. I was personally singled out and sent back three times for not having money and also sent back within the six month when you aren't to be sent according to state law. I will work to het this INSOMM's removed from this state. I also had twelve or thirteen parole agents with a fifteen month period. Thanks for your time.

  2. Our nation produces very few jurists of the caliber of Justice DOUGLAS and his peers these days. Here is that great civil libertarian, who recognized government as both a blessing and, when corrupted by ideological interests, a curse: "Once the investigator has only the conscience of government as a guide, the conscience can become ‘ravenous,’ as Cromwell, bent on destroying Thomas More, said in Bolt, A Man For All Seasons (1960), p. 120. The First Amendment mirrors many episodes where men, harried and harassed by government, sought refuge in their conscience, as these lines of Thomas More show: ‘MORE: And when we stand before God, and you are sent to Paradise for doing according to your conscience, *575 and I am damned for not doing according to mine, will you come with me, for fellowship? ‘CRANMER: So those of us whose names are there are damned, Sir Thomas? ‘MORE: I don't know, Your Grace. I have no window to look into another man's conscience. I condemn no one. ‘CRANMER: Then the matter is capable of question? ‘MORE: Certainly. ‘CRANMER: But that you owe obedience to your King is not capable of question. So weigh a doubt against a certainty—and sign. ‘MORE: Some men think the Earth is round, others think it flat; it is a matter capable of question. But if it is flat, will the King's command make it round? And if it is round, will the King's command flatten it? No, I will not sign.’ Id., pp. 132—133. DOUGLAS THEN WROTE: Where government is the Big Brother,11 privacy gives way to surveillance. **909 But our commitment is otherwise. *576 By the First Amendment we have staked our security on freedom to promote a multiplicity of ideas, to associate at will with kindred spirits, and to defy governmental intrusion into these precincts" Gibson v. Florida Legislative Investigation Comm., 372 U.S. 539, 574-76, 83 S. Ct. 889, 908-09, 9 L. Ed. 2d 929 (1963) Mr. Justice DOUGLAS, concurring. I write: Happy Memorial Day to all -- God please bless our fallen who lived and died to preserve constitutional governance in our wonderful series of Republics. And God open the eyes of those government officials who denounce the constitutions of these Republics by arbitrary actions arising out capricious motives.

  3. From back in the day before secularism got a stranglehold on Hoosier jurists comes this great excerpt via Indiana federal court judge Allan Sharp, dedicated to those many Indiana government attorneys (with whom I have dealt) who count the law as a mere tool, an optional tool that is not to be used when political correctness compels a more acceptable result than merely following the path that the law directs: ALLEN SHARP, District Judge. I. In a scene following a visit by Henry VIII to the home of Sir Thomas More, playwriter Robert Bolt puts the following words into the mouths of his characters: Margaret: Father, that man's bad. MORE: There is no law against that. ROPER: There is! God's law! MORE: Then God can arrest him. ROPER: Sophistication upon sophistication! MORE: No, sheer simplicity. The law, Roper, the law. I know what's legal not what's right. And I'll stick to what's legal. ROPER: Then you set man's law above God's! MORE: No, far below; but let me draw your attention to a fact I'm not God. The currents and eddies of right and wrong, which you find such plain sailing, I can't navigate. I'm no voyager. But in the thickets of law, oh, there I'm a forester. I doubt if there's a man alive who could follow me there, thank God... ALICE: (Exasperated, pointing after Rich) While you talk, he's gone! MORE: And go he should, if he was the Devil himself, until he broke the law! ROPER: So now you'd give the Devil benefit of law! MORE: Yes. What would you do? Cut a great road through the law to get after the Devil? ROPER: I'd cut down every law in England to do that! MORE: (Roused and excited) Oh? (Advances on Roper) And when the last law was down, and the Devil turned round on you where would you hide, Roper, the laws being flat? (He leaves *1257 him) This country's planted thick with laws from coast to coast man's laws, not God's and if you cut them down and you're just the man to do it d'you really think you would stand upright in the winds that would blow then? (Quietly) Yes, I'd give the Devil benefit of law, for my own safety's sake. ROPER: I have long suspected this; this is the golden calf; the law's your god. MORE: (Wearily) Oh, Roper, you're a fool, God's my god... (Rather bitterly) But I find him rather too (Very bitterly) subtle... I don't know where he is nor what he wants. ROPER: My God wants service, to the end and unremitting; nothing else! MORE: (Dryly) Are you sure that's God! He sounds like Moloch. But indeed it may be God And whoever hunts for me, Roper, God or Devil, will find me hiding in the thickets of the law! And I'll hide my daughter with me! Not hoist her up the mainmast of your seagoing principles! They put about too nimbly! (Exit More. They all look after him). Pgs. 65-67, A MAN FOR ALL SEASONS A Play in Two Acts, Robert Bolt, Random House, New York, 1960. Linley E. Pearson, Atty. Gen. of Indiana, Indianapolis, for defendants. Childs v. Duckworth, 509 F. Supp. 1254, 1256 (N.D. Ind. 1981) aff'd, 705 F.2d 915 (7th Cir. 1983)

  4. "Meanwhile small- and mid-size firms are getting squeezed and likely will not survive unless they become a boutique firm." I've been a business attorney in small, and now mid-size firm for over 30 years, and for over 30 years legal consultants have been preaching this exact same mantra of impending doom for small and mid-sized firms -- verbatim. This claim apparently helps them gin up merger opportunities from smaller firms who become convinced that they need to become larger overnight. The claim that large corporations are interested in cost-saving and efficiency has likewise been preached for decades, and is likewise bunk. If large corporations had any real interest in saving money they wouldn't use large law firms whose rates are substantially higher than those of high-quality mid-sized firms.

  5. The family is the foundation of all human government. That is the Grand Design. Modern governments throw off this Design and make bureaucratic war against the family, as does Hollywood and cultural elitists such as third wave feminists. Since WWII we have been on a ship of fools that way, with both the elite and government and their social engineering hacks relentlessly attacking the very foundation of social order. And their success? See it in the streets of Fergusson, on the food stamp doles (mostly broken families)and in the above article. Reject the Grand Design for true social function, enter the Glorious State to manage social dysfunction. Our Brave New World will be a prison camp, and we will welcome it as the only way to manage given the anarchy without it.

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