We recently blogged about a case in which a court ruled that a subpoena for a remote deposition did not violate Federal Rule of Civil Procedure 45(c)’s 100-mile limit on subpoenas for non-party witnesses because the deponent would be testifying – remotely – within 100 miles of his residence.The court’s ruling made a lot of sense. After all, how onerous could a subpoena be if compliance means no more than cracking open a laptop in the comfort of the deponent’s home?

It is republished here with permission. Parties can serve subpoenas seeking discovery from nonparties pursuant to Federal Rule of Civil Procedure 45. The rule mandates that the court protect nonparties from undue burden and provides protections for those subject to subpoena, but courts are inconsistent in applying the tools provided by Rule 45.

It is republished here with permission. Recent case law reveals that courts vary widely in their approaches to shifting the costs and fees incurred in responding to a Federal Rule of Civil Procedure 45 subpoena. Some courts view shifting costs and fees as mandatory in situations where a nonparty is forced to bear “significant” costs.

Image: Kaylee Walstad, EDRM.In Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024), the Hon. J. Mark Coulson construed a Fed.R.Civ.P. 45 motion to quash or modify a subpoena, which would have been heard in New York, as a Fed.R.Civ.P. 26(c) motion for protective order that was resolved in the District of Maryland.Here, Defendants’ motion is based, at least in part, on Rule 26 given Defendants’ citation to the same in support of its motion to quash….. The undersigned will therefore construe Defendants’ motion as one for a protective order under Rule 26(c) and analyze it accordingly.” Hon. J. Mark Coulson in Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024). Rullan involved a dispute over what I will loosely describe as control of a business. Id. at *1. While the case was pending in the District of Maryland, some assertedly relevant documents were at the Davidoff Law Firm in New York. Id. The law firm was not a party in the lawsuit.Plaintiff served a subpoena on the law firm, seeking six categories of documents. Id. at *4. Service was in New York, as was the location of the requested production. Id. at *5.Defendants

Addressing an issue of first impression, and one that is becoming increasingly important as the legal industry has become more comfortable with and dependent on video conference technology in the aftermath of the pandemic, the Ninth Circuit has ruled that the 100-mile limitation under Rule 45(c) of the Federal Rules of Civil Procedure applies to remote testimony.In In re John Kirkland, et al. v. USBC, Los Angeles, the petitioners, Mr. and Mrs. Kirkland who resided in California before relocating to the U.S. Virgin Islands, moved to quash subpoenas commanding them to testify via video conference at a trial before a bankruptcy court in the Central District of California. The bankruptcy court denied the motions finding that “good cause and compelling circumstances” existed to warrant the petitioners’ remote testimony pursuant to Rule 43(a), which provides that “[a]t trial, the witnesses’ testimony must be taken in open court unless a federal statute, the Federal Rules of Evidence, these rules, or other rules adopted by the Supreme Court provide otherwise[; and f]or good cause in compelling circumstances and with appropriate safeguards, the court may permit testimony in open court by contemporaneous transmission from a different location.” The bankruptcy court also concluded that Rule 45(c)’s “place of compliance” shou

State or federal grand jury subpoenas.Prosecutors may use grand jury subpoenas to seek account or transactional information relevant to the investigation of suspected crimes involving customers, employees, or related entities of financial services companies.State or federal financial regulatory investigations.Regulators and governmental entities may subpoena financial services companies as part of their oversight or enforcement responsibilities. These subpoenas may originate from:the Consumer Financial Protection Bureau (CFPB);the Department of Justice (DOJ);the Treasury Department;the Federal Trade Commission;the Securities and Exchange Commission (SEC);the Commodity Futures Trading Commission;FINRA;federal and state law enforcement agencies; orstate attorneys general.The procedures parties must follow to enforce subpoenas depend on the rules that apply. The specific rules governing subpoenas vary depending on the issuing:Court.Arbitration forum.Regulatory agency or government office.FRCP 45 and analogous state rules of civil procedure typically govern subpoenas in civil cases. These rules generally dictate the formatting, issuance, and service of subpoenas in civil proceedings (for example, FRCP 45; Ohio R. Civ. P. 45; Tex. R. Civ. P. 176.1).Parties serving subpoenas in civil cases generally must:Be a party to a pending lawsuit or to a lawsuit in which the party is seeking post-judgment discovery. In other words, subpoenas in civil litigation typically are invalid without an underlying case.Include any disclosures or other information required under the applicable rules of civil procedure (for example, FRCP 45(a)(1)(A) (requiring, among other things, that subpoenas include a case number, the issuing court, a case caption, and the text of FRCP 45(d) and (e))).Ensure that the subpoenas are signed by an appropriate officer of the court. Depending on the jurisdiction and circumstances, that may be the clerk of court, the judge, or an attorney (for example, FRCP 45(a)(3) (per

Third-party witnesses usually do not have a stake in the result of the case and so can emerge to the finder of fact as the most credible witnesses in the case. They also may have documents unavailable to any of the parties. U.S. civil procedure recognizes this and makes it easy for a party to access evidence from third parties. Federal Rules of Civil Procedure Rule 45 was amended in 2013 to make third-party discovery more straightforward. At the state level, a significant majority of states have adopted some form of the Uniform Interstate Depositions and Discovery Act, which simplifies the process for state courts in enforcing out-of-state subpoenas.

Id. F.R.C.P. 45 governs the issuance and service of subpoenas in federal district court. Thus, under the FAA, F.R.C.P. 45 also governs the service of arbitration subpoenas.

rty creating documentsex novo, they afford their judges ample discretion when ordering disclosure. The CAT or the High Court can give directions for disclosure (having regard to the need to limit disclosure to what is necessary), including in what format documents are to be disclosed, what searches are to be undertaken, in what format documents are to be disclosed, and what is required in relation to documents that once existed but no longer exist. With regard to third parties, while the CAT and the High Court can order disclosure of their documents, their powers are more limited, i.e., i) the documents for which disclosure is sought should be considered likely to support the case of the applicant and ii) disclosure would be necessary to dispose fairly of the claim or to save costs.What Is the Status in the U.S.?Disclosure rules for civil litigation in United States federal courts generally do not require third-parties to create documents or other information that do not already exist.Federal Rule of Civil Procedure 45 allows parties in civil litigation to issue subpoenas to non-parties, who must i) produce documents as they are kept in the ordinary course of business, and ii) produce data or electronically stored information in the form in which it is usually maintained or in reasonably usable form(s).Beyond the rules for party discovery in United States civil litigation (i.e., discovery from plaintiffs and defendants),Rule 45 contains provisions designed to provide additional protection to non-parties from the financial burden associated with participating in discovery in civil litigation.United States federal courts regularly reject requests in civil litigation seeking to compel non-parties to create new materials in response to Rule 45 subpoenas, because new, non-existent documents are not in a non-party’s “possession, custody, or control,” and thus beyond the scope of a Rule 45 subpoena.However, United States courts regularly require non-parties to produce data where compliance with the subpoen

Inside this issue:Advances in Videoconferencing Do Not Change the Subpoena Power of the CourtCalifornia Codifies Standard for Defense Experts’ Alternative Causation OpinionsNew MDLs Created for Bard Implants and Insulin Price FixingEPA Issues Gatekeeping Framework for New PFAS and New Uses of Existing PFASNYDOH’s Proposed Regulations Expand Notification Requirements for PFAS in Drinking WaterEPA Releases White Paper Explaining Approach to Part 2 of Asbestos Risk EvaluationLearn more about Dechert's Product Liability and Mass Torts servicesHot TopicsAdvances in Videoconferencing Do Not Change the Subpoena Power of the CourtIn In re Kirkland, 2023 WL 4777937 (9th Cir. July 27, 2023), the Ninth Circuit held that a district court could not subpoena testimony outside the geographic scope of Federal Rule of Civil Procedure 45(c), even if the witness could appear remotely via videoconferencing.Under Rule 45(c), a district court has the power to compel a witness to testify at trial if the trial takes place: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person is a party or commanded to attend trial. Rule 43(a) permits courts “[f]or good cause and compelling circumstances” to allow for testimony by videoconference.In In re Kirkland, witnesses who had previously testified in a related case when they resided in California had since relocated to the U.S. Virgin Islands. One party sought to introduce that prior testimony before the bankruptcy court, arguing the witnesses were unavailable and making the prior testimony admissible hearsay. The bankruptcy court concluded the “unavailability” had been engineered for strategic purposes and that the pr