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Changes to Federal Rule of Civil Procedure 45 Take EffectDecember 16, 2013
As of December 1, 2013, several important changes to Federal Rule of Civil Procedure 451 take effect. These changes will impact nonparty discovery practice in federal court cases, including issues such as where subpoenas can be served and which courts can adjudicate disputes arising out of subpoenas. The changes also clarify when a company’s officers can be compelled to appear at trial in a distant district court.
Among the more significant changes to Rule 45:
- A subpoena must now “issue from the court where the action is pending.” See Rule 45(a)(2). Previously, a subpoena was required to issue from the court in the district where the deposition, production, or inspection would take place.
- A subpoena may now be served nationwide (“at any place within the United States”), see Rule 45(b)(2), whereas under the old rule, the geographic area for service of the subpoena was generally tied to the location of the issuing court.2
- The new formulation of the Rule resolves a split among courts3 as to whether party officers can be compelled to attend trial in a district or state where they do not live or regularly work: under the amended Rule, they cannot. See Rule 45(c)(1); Committee Notes.
- A subpoenaed witness can only be required to attend a trial, hearing, or deposition (1) within 100 miles of where the witness resides, is employed, or regularly transacts business in person, or (2) within the state where the person resides, is employed, or regularly transacts business in person if the witness is a party or a party’s officer or is commanded to attend trial and would not incur substantial expense. See Rule 45(c)(1).
- A party witness’ attendance at a deposition, however, is not subject to this limitation because “[d]epositions of parties, and officers, directors, and managing agents of parties need not involve use of a subpoena”—such depositions can simply be noticed under Rule 30.4 See Committee Notes.
- The new Rule allows a dispute (e.g., a motion to compel, or conversely a motion for protective order, motion to quash, or motion to modify) to be transferred to the issuing court, from the district where compliance is required, if the nonparty subject to the subpoena consents or “if the court finds exceptional circumstances.” See Rule 45(f).
- The Rule does not define “exceptional circumstances,” but the Committee Notes indicate that 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.” However, transfer is appropriate only “if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.” That is because “[t]he prime concern should be avoiding burdens on local nonparties subject to subpoenas[.]” See Committee Notes.
- Of course, separate and apart from any changes to Rule 45, in an MDL action, the MDL court is already widely-recognized as having the power to resolve disputes involving subpoenas seeking deposition testimony, irrespective of the place where compliance is required. That is because 28 U.S.C. § 1407(b) expressly empowers an MDL court to “exercise the powers of a district judge in any district for the purpose of conducting pretrial depositions[.]” 28 U.S.C. § 1407(b); see also U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 444 F.3d 462, 468-69 (6th Cir. 2006) (describing MDL Court’s broad powers over nonparty discovery and noting that “the MDL judge is acting as a judge of the deposition or discovery district when he uses the authority outlined in Section 1407(b)”). There is some dispute as to whether a subpoena seeking only documents (as opposed to deposition testimony) is subject to enforcement by an MDL court, see VISX, Inc. v. Nidek Co., 208 F.R.D. 615, 616 (N.D. Cal. 2002), however, a majority of courts believe it is. See In re Welding Rod Products Liability Litig., 406 F. Supp. 2d 1064, 1066 (N.D. Cal. 2005); U.S. ex rel. Pogue v. Diabetes Treatment Centers of America, Inc., 238 F. Supp. 2d 270, 273-75 (D.D.C. 2002). Because 28 U.S.C. § 1407(b) expressly references “pretrial depositions”, there is no controversy as to whether an MDL court can enforce a nonparty deposition subpoena.
- The amended rule re-emphasizes more explicitly that, if the subpoena seeks the production of documents, electronically stored information, or tangible things, or the inspection of premises before trial, then other parties to an action must be given notice and a copy of the subpoena before it is served on the target of the subpoena. See Rule 45(a)(4).
The impact of these changes
The changes to Rule 45 will impact companies and their employees in several ways:
First, companies’ officers and employees can now be served with a subpoena nationwide, and location of service is unlikely to be a legitimate grounds for contesting adequate service. See Rule 45(b)(2).
Second, some “administrative” defenses to a subpoena have changed. For example, under the old rule, a nonparty might object to a subpoena issued from a distant district court where an action was pending. Now, the rule has been reversed, and a subpoena must be issued from the court where the action is pending—meaning a subpoena issued from a district court other than the one where the action is pending may not be valid under the new rule.
Third, in most cases a nonparty contesting a subpoena will still file their motion to quash in the local district court embracing the location where the deposition is to be held, or the production or inspection is to be made. But, “if the court finds exceptional circumstances” (or the nonparty-target of the subpoena consents), the local district court can transfer a dispute to the issuing court. See Rule 45(f). If a subpoena-related motion is transferred to the issuing court, the new rule permits an attorney for a nonparty who is admitted in the local district court to file papers and appear in the issuing court. See id. The Committee Notes also encourage the issuing court to permit telephonic appearances to minimize the burden of transfer on nonparties.
Fourth, the amended rule makes clear that party officers cannot be compelled to attend trial in a district or state where they do not live or regularly work. See Rule 45(c)(1). This change may reduce some disruption and costs associated with trial, and provides a greater degree of certainty for defendants in assessing which employees may be forced to testify at trial.
 Rule 45 governs subpoenas for trial testimony, deposition testimony, the production of documents or information, and the inspection of premises in federal district court cases.
 This aligns Rule 45 with Federal Rule of Criminal Procedure 17(e).
 See Committee Notes (comparing In re Vioxx Prods. Liability Litig., 438 F. Supp. 2d 664 (E.D. La. 2006) with Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La. 2008)).
 And, failure of such a witness to appear can result in Rule 37(b) sanctions on the party, including dismissal or default.
This memorandum is a summary for general information and discussion only and may be considered an advertisement for certain purposes. It is not a full analysis of the matters presented, may not be relied upon as legal advice, and does not purport to represent the views of our clients or the Firm. James Bo Pearl, an O'Melveny partner licensed to practice law in California, and Kevin Feder, an O'Melveny counsel licensed to practice law in California and the District of Columbia contributed to the content of this newsletter. The views expressed in this newsletter are the views of the authors except as otherwise noted.
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