While You Are Gorging — FRCP 45 (Non-Party Subpoenas) Changes Take Effect 12/1/13

By Fenwick & West LLP

Nov 29, 2013

Amendments to Federal Rules of Civil Procedure 45 at Hand

When we all return to work from Thanksgivukkah weekend, Federal Rule of Civil Procedure (FRCP) 45, governing non-party subpoenas, will have changed, effective December 1, 2013. To review the new content, follow one or both of these links:

Redlineversion of amendments to Rule 45(new material underlined; deleted material lined out)
Clean version of new Rule 45 (eff. 12/1/13) (submitted by the U.S. Sup. Ct. to Congress 4/16/13)

A set of accompanying changes will also have been made to FRCP 37(b)(1), as reflected at both of these other links:

Redline version of amendment to Rule37(b)(1)-(2)(new material underlined)
Clean version of new Rule37(b)(1) (eff. 12/1/13) (and the new heading forRule 37(b)(2))
Rest of Rule 37 (that remains unchanged; still reflecting old subsection (b)(1) as of 11/27/13)

And, the all important Advisory Committee Notes can be accessed here:

Rule 45Advisory Commitee Note(8 pages of thorough discusssion)
Rule 37 (b)(1) Advisory Commitee Note(1 very short paragaph)

Overview of Several of the Key Changes

1. Issuance from Court HandlingUnderlying Case

Nowa subpoena not only can but “must be issued from the court where the action is pending.” (emphasis added) FRCP 45(a)(2)
No longermust it issue froma courtlocated inthe geographical area for compliance.

2. Nationwide-Service and Compliance-Location Clarification

Now “[a] subpoena may be served at any place within the United States,” even though the compliance location must be tethered to the recipient’s place of residence, work or business. FRCP 45(b)(2)FRCP 45(c)(1)-(2)[NEW subsection]
No longerdoes one ever need to refer tostate law — asto, e.g., compliance location.

3. Forum for Subpoena-Related Motions/Disputes–a Change but WithSome Flexibility

Now, subpoena-related disputes will typically be resolved in the district court in the compliance location; however,there is a possibilityof transfer of a pertinent motion to the issuing court. FRCP 45(d)(3)[formerly (c)(3)]FRCP 45(f)[NEW subsection]Advisory Committee Note to 45(f) “In some circumstances . . .transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts[; t]ransfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.”)
No longerdoes one have to bring such a motion before the issuing court; however, “the court where compliance is required . . . may transfer a motion . . . if the person subject to the subpoena consents or if the court finds exceptional circumstances.”

To Learn More

As to a range of eDiscovery issues related to non-party subpoenas, see:

– eDiscovery: Subpoenas and Non-Party Production Issues(lengthy slide deck from a webinar I did for Lorman Education Services 5/20/13)

– Obligations When Third Parties Control Data, by Barry M. Kazan& Emily J. MathieuofThompson Hine, N.Y.L.J. (10/7/13)

As to the brand newFRCP changes (including ones not touched on in this post),see these excellent resources:

– Changes to[FRCP] 45 . . . Promise ToSimplify FederalSubpoena Practive, by Christopher Tompkins& Ethan E. Kent, Jenner & Block (11/14/13)

– Rule 45 Changes in Motion, by Richard Marcus, Distinguished Professor of Law, UC Hastings College of the Law, Recorder (8/8/11) (LEXIS ID & Password required)

– Rule 45 Third-Party Subpoenas and UpcomingAmendments, by Jonathan E. Goldbergof SNR Denton and Darren A. Craig of Frost Brown Todd, Strafford Publications (7/11/13)

– Report of the Civil Rules Advisory Committee (6/6/11)

– Survey of Issues Regarding [FRCP] 45, by Prof. Richard Marcus, Associate Reporter to the Advisory Committee on Civil Rules of the Judicial Conference of the U.S.(3/14/09)