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.
Progressive Emu Inc. v Anderson Weidner LLC 2019 WL 3798494 (11th Cir Aug 13, 2019) The plaintiff’s counsel waited until the last business day before trial to serve overbroad “trial subpoena” on the defendant’s parent corporation requiring compliance the next business day and outside the 100-mile limitation of Fed R Civ P 45(c)(1)(A). The appellate court upheld an award of attorney fees under Rule 45(d)(1) against the plaintiff’s counsel and added an award of attorney fees against the plaintiff’s counsel for pursuing a frivolous appeal under Fed R App P 38. Anokiwave, Inc. v Rebeiz 2019 WL 3935778 (SD Cal Aug 20, 2019) Despite the district court’s acknowledgment that the non-party had agreed to produce subpoenaed records and the defendant’s lack of standing to quash the subpoena, the court modified the subpoena based on the defendant’s overbreadth and relevancy objections. Lotus Industries, LLC v Archer 2019 WL 2247793 (ED Mich May 24, 2019) The district court shifted the cost of uploading subpoenaed records to an eDiscovery review platform plus five percent of the anticipated attorney fees for privilege review and privilege log compilation to the plaintiff pursuant to Fed R Civ P 45(d)(2)(B)(ii).
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.
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.
Legal Voice v. Stormans Inc., 738 F.3d 178, 182 (9th Cir. 2013) This holding should encourage more non-parties to pursue cost-shifting aggressively and, at the same time, encourage federal litigants to be more conservative in their discovery requests to non-parties and more amenable to negotiated limitations on non-parties’ discovery responses.Rule 45(d) Rule 45(d)(1) states that “[a] party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Where a non-party objects to some or all of a subpoena’s requests, the requesting party must seek a court order compelling compliance with the subpoena.
Under Rule 45, which authorizes the service of a subpoena, non-parties can be compelled to appear at a deposition, but only if it takes place within 100 miles of that person’s residence, place of employment, or place where the person regularly conducts business in person. Fed. R. Civ. P. 45(c). Rule 30, which governs depositions generally, addresses such matters as the timing and number of depositions (i.e., when leave from the court is and is not required) and the manner in which depositions should be conducted (e.g., length, objections, recording methods).
As to subject-matter jurisdiction, the Eleventh Circuit clarified that although the district court did have ancillary subject-matter jurisdiction over the motion to enforce the summonses because it retained jurisdiction over the subject settlement agreement, it was neither because the district court had appointed the arbitrator nor because the parties agreed to the jurisdiction of the district court in their arbitration agreement.Turning next to personal jurisdiction, Section 7 of the Federal Arbitration Act allows nationwide service of arbitral summonses. An arbitrator may summon an individual to attend the arbitration as a witness, and if the witness refuses, the district court in which the arbitrator sits may be petitioned to compel attendance “in the same manner provided by law for securing the attendance of witnesses … in the courts of the United States.” Federal Rule of Civil Procedure 45(b) provides that “a subpoena may be served at any place within the United States.” The Eleventh Circuit concluded that nationwide service of arbitral summonses is appropriate.Looking at 9 U.S.C. § 7 (which permits a court to compel the attendance of a person refusing to comply with an arbitral summons in the same manner provided by law for securing the attendance of witnesses) and Rule 45(d)(2)(B)(i) (which permits a court in the district in which compliance is required to compel), the Eleventh Circuit then concluded that “the plain meaning of 9 U.S.C. § 7 requires that a motion to compel must be filed in the district in which the arbitrators are sitting.”Next, the Eleventh Circuit determined that the summoned parties did not show that “the inconvenience of traveling in the present case to litigate their objections to the arbitral summonses rises to the level of constitutional concern” under the Fifth Amendment.The Eleventh Circuit addressed prehearing documentary discovery from nonparti
Courts must grapple with their authority over third parties outside of the court’s district. This in turn leads to questions regarding the proper interpretation of Fed. R. Civ. P. 45, the federal rule for subpoenas. While Rule 45 has been amended to make taking discovery from third parties easier—the 2013 amendments to Rule 45 included requiring that subpoenas issue from the court where the underlying dispute is pending and permitted nationwide service of process (Fed. R. Civ. P. 45(a)(2), (b)(2))—the arbitration decisions have apparently ignored these amendments and have done little to aid practitioners in obtaining necessary third-party evidence.
Territorial Limitations of Rule 45 Section 7 mandates that subpoenas issued by an arbitrator must be served “in the same manner as subpoenas to appear and testify before the court.”  Fed.R.Civ.P. 45 applies to subpoenas and provides that a subpoena summoning a person to attend a hearing or trial must be issued "from the court where the action is pending."  Rule 45(c)(1)(A) and (B) contain territorial restrictions which limit a district court’s power to compel a non-party’s appearance to attend a hearing taking place within the state where the non-party resides, is employed or regularly transacts business, or is within 100 miles of where the non-party resides, is employed or regularly transacts business.
E-Discovery Update This Sidley Update addresses the following recent developments and court decisions involving e-discovery issues:A Southern District of Indiana decision finding that the proportionality standards of Fed. R. Civ. P. 26 applied to a subpoena served on a nonparty under Fed. R. Civ. P. 45 and denying wide-ranging discovery requests for failure to satisfy those standards;A Northern District of California decision that applied the proportionality principles of Fed. R. Civ. P. 26 to a motion to compel, found on balance that the burden of the discovery requests outweighed their benefit but denied the motion without prejudice to await action by the presiding judge on outstanding and potentially dispositive legal issues; and A Northern District of California ruling that relied on the revised provisions of Fed. R. Civ. P. 37(e) and the court’s inherent authority to order an adverse inference instruction in favor of plaintiff and preclude defendants from introducing spoliated evidence to support their trademark claim. 1.