Revised Federal Rule of Civil Procedure 45
to Federal Rule of Civil Procedure 45,
governing subpoena practice, went
into effect. The new version of Rule 45
provides simplified guidelines for how
subpoenas may be issued and responded
to. This article addresses several of the
most substantial changes to the Rule and
their impact on practitioners, parties and
witnesses.
The purpose of the revisions to
Rule 45, in the words of the Advisory
Committee, was to "clarify and simplify
the rule" and to resolve conflicts with
interpretation between various courts.
Although not all of the changes to the rule
are major, some revisions are substantial
enough that any party involved in federal
civil litigation should take note.
The first major alteration is found in
Rule 45(a)(2), which now provides that
every subpoena must be issued from
the court where the action is pending.
The previous guidelines often required
the issuing party to issue subpoenas
witnesses or information were located.
By consolidating the place of origin of
subpoenas to the court where the matter is
pending, the Rule should reduce cost and
confusion by permitting parties to use a
single form of subpoena no matter where
the witness or information is located.
Another substantial change can be
found in Rule 45(b)(2), which now permits
nationwide service of subpoenas. This
modification permits the issuing party to
serve a subpoena at any place within the
U.S., eliminating the previous complex
guidelines of geographical limitations and
other requirements. So long as the person
to whom the subpoena is addressed is
located in the U.S., the issuing party may
serve the subpoena on that person, even if
that person is at a location where they do
not normally reside or conduct business.
While these modifications make it
easier for a party to issue and serve a
subpoena, the Rule contains substantial
protections to persons upon whom a
subpoena is directed. Under Rule 45(c), a
attend a trial, hearing or deposition within
100 miles of where the person subject
to the subpoena resides, is employed, or
regularly conducts business in person. It
is important to note, for corporate entities
that do business in other states, that while
a person can be compelled to appear
within 100 miles or within the state where
they "transact business," that transaction
must be "in person."
A subpoenaed person can be
compelled to travel more than 100 miles
in two situations. The first situation is if
that person is a party or a party's officer.
The second is if they are commanded
to attend a trial and if the person would
not incur substantial expense as a result
of doing so. In both circumstances,
while the 100-mile limit does not apply,
the proceeding for which the person
is compelled to attend must be within
the state where the person resides, is
employed, or regularly transacts business
in person.
Rohrbachers Cron Manahan Trimble & Zimmerman Co., L.P.A.,
where his practice is focused on business and insurance litigation.
Trimble & Zimmerman Co., L.P.A. His practice focuses on business
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