The Leaner, Meaner Federal Subpoena …

Somewhat lost amid the holiday din were the recent amendments to Rule 45 of the Federal Rules of Civil Procedure. These significant changes took effect on December 1, 2013, and simplify some of the procedures relating to subpoenas in Federal court. Below is a summary of the seminal changes:

Issuing a Subpoena
The amendments set forth that the issuing court for all subpoenas is the court where the action is pending. Fed. R. Civ. P. 45 (a).

Notice and Obtaining the Subpoenaed Information
The amendments require that a subpoenaing party has to give notice and a copy of the subpoena to any parties before the subpoena is served. Fed. R. Civ. P. 45 (a)(4). Importantly, the Committee Notes state that “[p]arties desiring access to information produced in response to the subpoena will need to follow up with the party serving it … The party serving the subpoena should in any event make reasonable provision for prompt access.”

Serving a Subpoena
The amendments allow service at any place within the United States. Fed. R. Civ. P. 45(b)(2).

Enforcing a Subpoena
The amendments further set forth that while the issuing court for all subpoenas will be the court where the action is pending, the enforcing court (i.e., the court dealing with the ubiquitous motions to quash, to compel or for a protective order) is the district court where compliance is required. When this court is not the issuing court, the enforcement court may transfer a Rule 45 motion to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances. Fed. R. Civ. P. 45(f). The rule requiring “exceptional circumstances” is aimed to reduce the burden on non-parties. See Committee Notes on Rules 2013 Amendments (“[L]ocal resolution of disputes about subpoenas is assured by the limitations of Rule 45(c)”); (“[t]he prime concern [in resolving transfer motions] should be avoiding burdens on local nonparties subject to subpoenas …”). The Notes further suggest that even if the motion to transfer is granted, “[J]udges are encouraged to permit telecommunications methods to minimize the burden a transfer imposes on nonparties …”

Complying with a Subpoena
The amendments also establish that a subpoena may command a person’s attendance at a trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly does business; and may be outside of 100 miles, if the person is a party or a party’s officer, or is commanded to attend trial and would not incur substantial expense. Fed. R. Civ. P. 45(c)(1). For document discovery, a subpoena may command production or inspections within the foregoing 100-mile guidelines. Fed. R. Civ. P. 45(c)(2).

The recent amendments to Rule 45 streamline the procedures relating to Federal subpoenas. IP practitioners should take heed of these amendments and their underlying Committee Notes.

Ralph A. Dengler, a former Director in the Gibbons Intellectual Property Department, and Andrew P. MacArthur, a former Associate in the Gibbons Intellectual Property Department, co-authored this post.