Federal Bar Update: Rule requires advance service of non-party document requests

Back to TopCommentsE-mailPrintBookmark and Share

FedBarMaley-sigUnknown to some practitioners, since 1991 the current version of Fed. R. Civ. P. 45 requires advance notice to opposing parties of document subpoenas issued to non-parties. This language is somewhat buried in section (b)(1) as follows:

“(b) Service. (1) By Whom; Tendering Fees; Serving a Copy of Certain Subpoenas. Any person who is at least 18 years old and not a party may serve a subpoena. Serving a subpoena requires delivering a copy to the named person and, if the subpoena requires that person’s attendance, tendering the fees for 1 day’s attendance and the mileage allowed by law. Fees and mileage need not be tendered when the subpoena issues on behalf of the United States or any of its officers or agencies. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.” (emphasis added).

This language has only been cited in 27 reported decisions, none from an appellate court. An example of a relatively recent District decision addressing this issue is EEOC v. Rexnord Industries, LLC, 2012 U.S. Dist. LEXIS 91006 (E.D. Wis. 2012), in which the court wrote:

“The EEOC argues the subpoenas should be quashed because Rexnord failed to provide adequate notice under Fed. R. Civ. P. 45(b)(1). Rule 45(b)(1) requires that ‘[i]f the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.’ While the Rule does not state how much notice is required, the 1991 Advisory Committee Notes to Rule 45 indicates that the purpose of the notice requirement is to provide opposing parties an opportunity to object to the subpoena. The parties do not cite, and this Court has not found, any Seventh Circuit authority addressing the proper amount of notice to be given under Rule 45(b)(1). However, given the purpose of the Rule is to provide the opposing party an opportunity to object to the subpoena, the purpose of the Rule in this case has been served. The subpoenas were provided to the EEOC two weeks prior to the date of compliance, during which time the EEOC voiced its objections to the subpoenas, received an extension of time to file from Rexnord, and filed a motion to quash. Because the EEOC had an opportunity to object before compliance with the subpoenas, the motion will not be denied on this ground.”

Effective Dec. 1, a number of changes will occur to Rule 45, and those will be addressed in the next column. One change in this context, however, is that this pre-service notice to parties is given prominence and its own titled subsection. Specifically, Rule 45(a)(4) will read:

“Notice to Other Parties Before Service. If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.”

Notably, unlike Indiana’s Trial Rule 34(C)(1) which requires 15 days advance service, the amended federal rule still does not provide a specific time period of advance notice. Presumably, absent local rule, case management guidance or agreement among parties, “reasonableness” will be the guide.

Under the current version of Rule 45, it is common for case management plans in the Southern District of Indiana to address this issue. This author has seen plans with requirements of three-, 10- or 14-days advance notice. The Local Rules Advisory Committee for the Southern District addressed this issue in its October meeting and recommended to the court that a seven-day advance notice period be set forth in Local Rule 45-1, with exceptions for agreement of counsel or emergencies. The consensus among the committee (which includes government attorneys, private practitioners, plaintiff and defense attorneys, corporate counsel, and judicial officers) was that seven days was sufficient time for an opposing party to determine whether to raise objections, try to resolve the issue, and if necessary seek court relief. It remains to be seen what the court does with the recommendation.

In the meantime, practitioners should be aware that with the amended Rule 45 and its prominent featuring of this issue, advance service will be expected and more likely to be enforced.

Annual Federal Civil Practice Update seminar – This annual 3-hour CLE seminar for the Southern District of Indiana will be Thursday, Dec. 19 from 1:30 to 4:45 p.m. in Indianapolis, and will feature Chief Judge Richard Young, Magistrate Judge Roger Cosbey, Magistrate Judge Denise LaRue, Magistrate Judge William Hussmann, Don Wall from the 7th Circuit, and Clerk Laura Briggs. Registration is open at•


John Maley – – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.


Post a comment to this story

We reserve the right to remove any post that we feel is obscene, profane, vulgar, racist, sexually explicit, abusive, or hateful.
You are legally responsible for what you post and your anonymity is not guaranteed.
Posts that insult, defame, threaten, harass or abuse other readers or people mentioned in Indiana Lawyer editorial content are also subject to removal. Please respect the privacy of individuals and refrain from posting personal information.
No solicitations, spamming or advertisements are allowed. Readers may post links to other informational websites that are relevant to the topic at hand, but please do not link to objectionable material.
We may remove messages that are unrelated to the topic, encourage illegal activity, use all capital letters or are unreadable.

Messages that are flagged by readers as objectionable will be reviewed and may or may not be removed. Please do not flag a post simply because you disagree with it.

Sponsored by
Subscribe to Indiana Lawyer
  1. I have an open CHINS case I failed a urine screen I have since got clean completed IOP classes now in after care passed home inspection my x sister in law has my children I still don't even have unsupervised when I have been clean for over 4 months my x sister wants to keep the lids for good n has my case working with her I just discovered n have proof that at one of my hearing dcs case worker stated in court to the judge that a screen was dirty which caused me not to have unsupervised this was at the beginning two weeks after my initial screen I thought the weed could have still been in my system was upset because they were suppose to check levels n see if it was going down since this was only a few weeks after initial instead they said dirty I recently requested all of my screens from redwood because I take prescriptions that will show up n I was having my doctor look at levels to verify that matched what I was prescripted because dcs case worker accused me of abuseing when I got my screens I found out that screen I took that dcs case worker stated in court to judge that caused me to not get granted unsupervised was actually negative what can I do about this this is a serious issue saying a parent failed a screen in court to judge when they didn't please advise

  2. I have a degree at law, recent MS in regulatory studies. Licensed in KS, admitted b4 S& 7th circuit, but not to Indiana bar due to political correctness. Blacklisted, nearly unemployable due to hostile state action. Big Idea: Headwinds can overcome, esp for those not within the contours of the bell curve, the Lego Movie happiness set forth above. That said, even without the blacklisting for holding ideas unacceptable to the Glorious State, I think the idea presented above that a law degree open many vistas other than being a galley slave to elitist lawyers is pretty much laughable. (Did the law professors of Indiana pay for this to be published?)

  3. Paul Hartman of Burbank, Oh who is helping Sister Fuller with this Con Artist Kevin Bart McCarthy scares Sister Joseph Therese, Patricia Ann Fuller very much that McCarthy will try and hurt Patricia Ann Fuller and Paul Hartman of Burbank, Oh or any member of his family. Sister is very, very scared, (YES, I AM) This McCarthy guy is a real, real CON MAN and crook. I try to totall flatter Kevin Bart McCARTHY to keep him from hurting my best friends in this world which are Carolyn Rose and Paul Hartman. I Live in total fear of this man Kevin Bart McCarthy and try to praise him as a good man to keep us ALL from his bad deeds. This man could easy have some one cause us a very bad disability. You have to PRAISAE in order TO PROTECT yourself. He lies and makes up stories about people and then tries to steal if THEY OWN THRU THE COURTS A SPECIAL DEVOTION TO PROTECT, EX> Our Lady of America DEVOTION. EVERYONE who reads this, PLEASE BE CAREFUL of Kevin Bart McCarthy of Indianapolis, IN My Phone No. IS 419-435-3838.

  4. Joe, you might want to do some reading on the fate of Hoosier whistleblowers before you get your expectations raised up.

  5. I had a hospital and dcs caseworker falsify reports that my child was born with drugs in her system. I filed a complaint with the Indiana department of health....and they found that the hospital falsified drug screens in their investigation. Then I filed a complaint with human health services in Washington DC...dcs drug Testing is unregulated and is indicating false positives...they are currently being investigated by human health services. Then I located an attorney and signed contracts one month ago to sue dcs and Anderson community hospital. Once the suit is filed I am taking out a loan against the suit and paying a law firm to file a writ of mandamus challenging the courts jurisdiction to invoke chins case against me. I also forwarded evidence to a u.s. senator who contacted hhs to push an investigation faster. Once the lawsuit is filed local news stations will be running coverage on the situation. Easy day....people will be losing their jobs soon...and judge pancol...who has attempted to cover up what has happened will also be in trouble. The drug testing is a kids for cash and federal funding situation.