New rules governing federal subpoenas will take effect December 1, 2013

10/30/2013

On December 1, 2013, federal courts will be operating under an amended Rule 45, which governs subpoenas. These changes are particularly important to attorneys who have to subpoena out-of-state or distant witnesses. Under the amended rule:

  1. A subpoena is issued from the court in which a case is pending. Previously, Rule 45 provided that a subpoena should be issued from the district in which attendance or production was required.
  2. A subpoena may now be served anywhere in the United States. Previously, a subpoena needed to be served within the district where the deposition was required, or within 100 miles of that judicial district. A non-party still cannot be required to travel more than 100 miles from home or work to comply with a subpoena.
  3. To challenge a subpoena, a non-party must go to the district court where he or she resides, rather than the court from which the subpoena was issued. Likewise, enforcement of a subpoena must be sought where the responding party resides. A dispute can be transferred back to the district where the action is pending if the non-party consents to the transfer.
  4. A party issuing a subpoena must provide a copy to other parties in the litigation. Although this rule existed before the 2013 amendment, the Rules Committee observed that many litigants did not follow it.

The amendments to Rule 45 also address a split in authority over whether an officer of a corporate party may be required to travel more than 100 miles. The rule now specifies that subpoenas may require officers to appear anywhere in the state in which he or she works, resides, or transacts business. The comments point out that a notice of deposition contains no such restrictions, which means that a deposition notice may be a superior tool for compelling parties to appear.

The new rule is available here.


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