a subpoena's place of compliance has
been clarified, it should be noted that
the advisory committee warns that Rule
45's new revisions do not change the
scope of depositions of parties and their
officers, directors and managing agents.
The committee notes that courts "retain
their authority" pursuant to Rule 37 to
control the place of party depositions and
impose sanctions for failure to appear.
Thus, individual parties and their officers,
directors and agents must remain careful
to comply with notices of depositions so
as not to run the risk of a failure to appear
for a deposition and subsequent sanctions
made under Rule 37.
Another major element of Rule 45's
revisions is found in Rule 45(d), which
governs the protection of a person subject
to a subpoena. Under the former version
of the Rule, the district in which the
subpoena was issued handled motions to
quash a subpoena. Under the new rule,
the issuing court is now the district in
which the lawsuit is pending. The revised
language of subpart (d)(3), however, states
that motions to quash are to be handled
in "the court for the district where
compliance is required..." Thus, by way
of example, if a subpoena is issued in a
case pending before the District Court for
the Northern District of Ohio, requiring
compliance by a witness residing in the
District of the Eastern District of North
Carolina, a motion to quash the subpoena
would be heard in the North Carolina
case. Issuing parties must thus be aware
that while they may issue a subpoena
from the court where a case is pending, a
witness seeking to quash that subpoena
will have the opportunity to have their
motion considered by a different court
altogether.
At the same time, Rule 45's newly
added subpart (f) provides that, under
certain circumstances, when a court
is faced with a motion concerning a
subpoena that it did not issue, that motion
may be transferred to the issuing court.
which the person subject to the subpoena
consents to the transfer or where the court
finds "exceptional circumstances." The
transfer rules apply to motions to quash,
objections to a subpoena commanding
the production of documents or to permit
inspection, and claims of privilege. As
the advisory committee notes, in order
to protect nonparties, local resolution of
disputes regarding subpoenas is preferred
and assured by the requirement that
motions be made in the Court in which
compliance is required. Under certain
circumstances, however, transfer to
the court where the underlying action
is pending is sometimes warranted.
Absent such a transfer, the issuing court
lacks authority to enter relief to a party
challenging a subpoena. For example, in
Semex Alliance v. Elite Dairy Genomics,
LLC, 2014 WL 1576917, the U.S. District
Court for the Southern District of Ohio
rejected a non-party witness's attempt to
quash a subpoena, noting that because
the subpoena required compliance in
Chicago, the U.S. District Court for the
Northern District of Illinois was the court
in which the motion should have been
made, and without a transfer of the motion
to the Southern District of Ohio, that
court lacked "the power to issue the order
sought." Id, 2.
Courts continue to take the protection
of those subject to subpoenas seriously.
Rule 45(d)(1) provides that parties and
attorneys serving a subpoena must take
reasonable steps to avoid imposing undue
burden or expense on those subject to the
subpoena. This obligation is substantial:
as long as the duty has been violated,
it is of "no consequence" that the party
serving the subpoena acted in good faith.
Green v. MOBIS Alabama, LLC, 2014 WL
2041857 (M.D. Alabama). Thus, caution
must be exercised to ensure that subpoena
power is not abused lest sanctions be
imposed.
The changes to Rule 45 are meant
to simplify the sometimes confusing
requirements of the prior version. The
for the protection of those subject to
subpoenas. Further, it is now much
simpler to create and serve subpoenas.
These changes offer clarity to both
practitioners and their clients. Parties,
particularly corporate entities and
their officers, directors and agents, are
provided assurance that their appearance
for matters cannot be compelled
unnecessarily pursuant to a subpoena, and
motions related to quashing or limiting
the reach of a subpoena from a distant
case can be brought in a local court.
By being aware of Rule 45's authority
and restrictions, parties and witnesses
can take the necessary steps to utilize
or respond to subpoenas efficiently and
effectively.