How Amendments to Federal Rules of Civil Procedure 45 Affects Your Practice

Legal Compliance Resource
December 10, 2013 — 1,169 views  

There have been significant changes to the Federal Rule of Civil Procedure 45 that governs civil subpoenas. These changes are set to become effective from the 1st of December, 2013. The amendments have made five major changes to Rule 45, attempting to try and make a simplification with regard to the current federal practice that is in effect for issuing and responding to subpoenas. The older version of FRCP 45 required attorneys to consult different provisions that were scattered around different areas of the rule in order to be able to determine which court a subpoena must be issued from, where a subpoena from that particular court may be served and where the subpoena can determine that the compliance must take place.

The main goal of the new amendments is to reduce the confusion and create an elimination of hyper-technical disputes. The five major changes that have been made are as follows:

  1. The court where subpoenas are issued has been changed. Before the amendment, the rule’s provision stated that the discovery subpoenas need to be issued from the district court of the district where the compliance shall happen. Subpoenas now need to be issued from whichever court the action is pending in and it can be served from anywhere in the nation. The older rule would often give rise to confusion and disputes as different courts interpret provisions in dissimilar manners and also because different provisions impose geographic limitations. The amendments eliminate geographic limits related to the service of a subpoena as service can take place anywhere in the US.
  2. The amended rule simplifies the requirements that are needed to serve a subpoena and also continues to protect the recipients of the subpoena as they impose geographical limitations on the place for compliance with the writ. Under the amended rule a subpoena can only compel a person to attend a hearing or trial that is within 100 miles of where the person receiving the subpoena lives or works.
  3. Under the amendment, the main forum for resolving a motion to modify the subpoena or to compel compliance with it still remains the district court of the district where the compliance is necessary. The amended rule also provides two circumstances where motions may be transferred to the issuing court. The first being when the issuer and the recipient both consent to the transfer and second when the district court may transfer the hearing to the issuing court under certain exceptional circumstances.
  4. The amended rule also lays emphasis upon the older notice-of-service requirement. Before the amendment, the rule required the party that was issuing the document subpoena needed to also provide a notice to the rest of the parties before actually serving the subpoena. This provision was often ignored. The amendments try to strengthen this provision by moving the notice requirement.
  5. A final change was also made to the contempt provision to make clear that either court may hold a subpoena recipient in contempt for failing to obey the subpoena. Contempt power also extends to failing to obey a court order that is related to the subpoena.

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