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

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Indiana Lawyer Focus

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. Am I the only one who sees that the City is essentially giving away the MSA site AND giving millions to build new buildings on the site when this site would be the perfect place for the Justice Complex? Across from City-County, check; keeping it centrally located, check, etc. It's my understanding that the GM site must be purchased by the City from Motors Liquidation Company. STOP WASTING WHAT WE ALREADY HAVE AND OUR TAX DOLLARS! The Ballard Administration has not been known for it's common sense...never voted for him and never will!

  2. This guy sounds like the classic molester/manipulator.

  3. Louis D. Brandeis was born in 1856. At 9 years of age it would have been 1865. The Brandeis family did not own slaves. My source Louis D. Brandeis: A Life, by Melvin L. Urofsky.

  4. My name is Matthew Lucas Major, I recently went through a jury trial in Bloomington , In. It was the week of Feb 19-21. Although I have been incarcerated since August 5, 2014. The reason I 'am writing to you sir is on the 21 of February the jury came in with a very excessive and wrongful verdict of guilty on 6 child molesting charges against my daughter who was 9 at the time I was accused. I also had 2 other Felonies one of Intimidation and 1 of Sexual Vicarious Gratification. Judge Marc Kellam on the second day of trial gave me a not guilty on those 2 felonies. The jury was sent out during that time and when brought back Judge Kellam told them to not concern themselves with the 2 Felonies that he ruled on them. They were told to not let evidence they had already heard influence there verdicts. I never in my life touched any child sexually and definitely not with my own daughter. When I was arrested Detective Shawn Karr told me I would be convicted guilty just on my daughters word even without evidence. That's just what happened. my public defender did me so wrong he never once proved to the court and jury all the lies the child told, and Jeremy Noel my public defender could of proven the lies easily. The stories in Serenity's depositions and Forensic interview changed and were not consistent as Prosecutor Darcie Fawcett claimed they were. Yet my attorney never mentioned that. The facts that the child accused me of full penetration in her vagina and rectum was proven lies. Doctor Roberta Hibbard of Riley hospital in Indianapolis confirmed Serenity's hymen intact, no scars, no tearing, no signs of rape to her. Yet my attorney didn't use that knowledge . the DNA was all in my favor. I tell you I will spend my entire life in prison going through rape and beatings etc. even Judge Kellam abused his authority by telling the jurors to listen and believe what the prosecutors side in evidence like my daughters testimony. In one interview with the detectives my daughter got flustered with her mom and said on camera " I'm saying what you told me to mom"!! Yet Mr. Noel said nor did anything to even resemble a defense attorney. Judge Kellam allowed edited version of a taped conversation between the child and her mother. Also Judge Kellam allowed the Prosecutor too bring in to my case a knife found under my seat, the knife wasn't part of my case. She was allowed by my attorney and the judge to put a huge picture of it on the screen and huge picture of my naked privates in a full courtroom and open court. Ms. Fawcett says to jury see how easy Mr. Major could reach the knife and cut his Childs throat. Even though I had no weapons charge against these cases. This gave the jurors prejudice thought against me thinking I threatened her with that knife and how scared she would of been knowing i could get it and kill her. On my sentencing court March 19, 2014 my public defender told Judge Kellam he wish to resign from being my attorney and wished for the court to give me outside council to file a error to trial or appeal. We were denied. Now after openly knowing my public defender don't want to represent me he has to. Well when as parents we make our kids clean a room when they really don't wish to, well the child will but don't mean she will do a good job, that's where I'm at with Mr. Noel. please dont ignore mine and my families pleas for your help . we have all the legal proof you could need to prove Im innocent. Please dont make my spend years in prison innocent when you can fix this wrong. Im not saying Im a perfect man or that I was a perfect dad to my 2 children none of us are. Ive made some bad choices in life and I paid for them. But I didnt ever touch or rape my daughter . I love my children with all my heart. And now through needing attention and a ex-wife who told my granny several times she wish she could put me in prison to get me out of their lives. Well my ex finally accomplished her goal. Sad part is she is destroying our daughter with all this horrific lies and things she taught my daughter to say. My daughter will need therapist to ever hope for a chance of a normal life after what she had done to her by her mom and their side of the family. My daughter told everyone even on stand she had a dream months before i supposedly molested her in this dream I was molesting her and when I finally did it matched her dream perfectly. She admitted to watching movies about little girls being molested and watching U-Tube videos about child molesting all before it happened supposedly to her. Doesn't that sound very unusual that a non molested 9 yr old would need to know so much about being molested? The only reason I could think a 9 year old would need so much information is to be prepared to know what to say and be able to say how it felt what took place etc.. So when questioned by authorities she would be prepared. And there again sir if a parent is pre grooming a 9 year old child she would need intimate details . Like telling her daughter about a couple moles on my private area. The child admitted to sneaking my cell and looking many many times at nudes of me and my girlfriend even one where my penis was entering my girlfriends vagina. In that picture my moles are obvious. Yet when prosecutor showed everyone in court my privates and pictures of the moles she said the only way the child would know about them is if she saw them for herself. My attorney once again said nothing about the pictures my child saw. Or could a ex-wife be able to describe my moles to help her case against getting rid of me? I beg you help me. This is my very existence. Ive lost everything , a good job, a wonderful girlfriend, my freedom, but worse thing Ive lost is my children. They were my reason to get up every morning and strive to be better. The wonderful bond I had with my Serenity is gone. After this I would be afraid to even hug her for fear of what next can they do to me. I'm not afraid to tell you I sit here in this cell and try to hold back my tears. Everyone knows you cant show weakness in prison. My life has already been threatened here at Wabash Valley Prison. After only 3 days of arrival. I was tricked into signing a waiver now Im in G Block General Population with 6 child molesting felony charges. Mrs. Hart as a 18 year old I almost died hooked to machines in hospital almost 1 month and now I know that fear was childish compared to this . I cant help but put emotions in this, after all Mrs. Hart Im human and God help Me I never been more afraid in my life. I didnt hurt my little girl I didnt touch her sexually. As much as it shreds me and fills my mind what Im facing I worry more about my mom and granny because of their great love for me mam they are suffering so deeply. I aint done this things but my loved ones suffering right along beside me and If you take my case you will be in essence freeing them also. I sent momma this letter and asked her to email it to you. I'm scared I have been done so unjustly by our legal system and I need you to fix this and give me freedom. I ask you please don't just ignore my pleas. Here in America its nice to be able to trust our legal justice system, well they destroyed my and my loved ones trust in our justice system . And I'm trusting in You !!! My entire family is suffering this nightmare with me. My 77 year old granny had a stroke and isn't doing so well. My single mother that raised 3 kids alone is dying from Lupus and since my arrest has stayed so sick and weary. Our lives torn to peices by a government I was taught I could trust in. my momma has tried so many innocent project and wrongfully accused and cant get anywhere. please please help me. A quote from the late Nelson Mandela: To be free is not merely to cast off ones chains, But to live in a way that respects and enhances The Freedom Of Others. I have Faith in you and your clinic to cast my chains off and give me freedom I do deserve as a wrongfully accused Man, son, brother, father, friend. Matthew Major DOC# 246179 Cause # : 53c02-1308-FA-000779 God Bless you. Please contact me with your decision so I know you made a life changing decision for me , just please at least write me so I know you care enough about your citizens to respond to cries for your help. You can speak openly with my mother Charlotte Spain (828) 476-0406: 71 Lakeview Dr. Canton, NC 28716 Thank You Matthew Major I know yall get thousands of request and inmates claiming innocence, and each person who are innocent deserve to have organizations like yours willing to fight for them and I give yall so much Thanks and I thank God everyday yall are out there caring enough to help free the innocents. Since discovering firsthand how easily lives and families can be destroyed by Poor Defense attorneys not doing their job . And Prosecutors allowed to do as they please in court

  5. Frankly, it is tragic that you are even considering going to an expensive, unaccredited "law school." It is extremely difficult to get a job with a degree from a real school. If you are going to make the investment of time, money, and tears into law school, it should not be to a place that won't actually enable you to practice law when you graduate.

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