Unknown 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 The parties do not cite, and this Court has not found, any Seventh Circuit authority addressing the proper amount of notice to be given under Rule 45(b)(1).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 www.theindianalawyer.com.•
John Maley – [email protected] – is a partner with Barnes & Thornburg, LLP, practicing federal and state litigation, employment matters, and appeals. The opinions expressed are those of the author.