Analysis of the Proposed Amendments to Federal Rule of Civil Procedure 45 Pertaining to Nonparty Subpoenas for Documents

Abstract

Federal Rule of Civil Procedure 45 (“Rule 45”) governs subpoenaing a nonparty for documents. In particular, two subsections of Rule 45 must be complied with when subpoenaing a nonparty for documents: Rule 45(a)(2)(C) and Rule 45(b)(2)(B).Rule 45(a)(2)(C) specifies which court can issue the subpoena, and Rule 45(b)(2)(B) specifies where the subpoena may be served and sets a 100-mile limitation. Unfortunately, courts’ interpretations of Rule 45(a)(2)(C) and Rule 45(b)(2)(B) vary significantly, and the interpretations are muddled.Moreover, technological changes in how information is stored and delivered have rendered the rules outdated.

The Civil Rules Advisory Committee recognized problems with Rule 45 and accordingly issued a preliminary draft of proposed amendments, which will become effective on December 1, 2013, if approved.Most significantly, the proposed amendments resolve these problems by providing a subpoena issue from the court in which the action is pending, allowing nationwide service of process, and requiring subpoena compliance at a place reasonably convenient. However, a proposed rule designating the court where compliance is required as the proper court to handle subpoena-related motions may be difficult to apply in the context of electronic discovery. In addition, the meaning of the word “production” in the proposed rule is ambiguous and renders it unclear which court should handle subpoena-related motions.

This Comment begins by providing a brief history of the rules governing nonparty subpoenas for documents. It then details conflicting common law interpretations of Rule 45. Next, it explains why Rule 45 should be modified. Lastly, it analyzes the proposed amendments to determine whether they rectify current problems with Rule 45 and to anticipate new issues that may arise.