ARTICLE: Getting It Right: Properly Issuing a Subpoena Under FRCP 45

Louisiana Advocates, September 2020, Vol. XXXV, No. 9. Copyright
Louisiana Association for Justice. Used with Permission.



Introduction

Federal Rule of Civil Procedure 45 governs the ins-and-outs of subpoenas in federal court.  It includes three subparts dealing with how to get a properly-issued subpoena out the door.  These are the first three subparts to the Rule, and they deal with: (a) general information, (b) service requirements, (c) place of compliance requirements.  FRCP 45(a)-(c).  Although the Rule was revised in December 2013, confusion persists.  A detailed understanding of the Rule is necessary—especially if you are dealing with a recalcitrant defendant or party subject to a subpoena.  This Article addresses a few key points related to the first three subparts as an outline on how to get it right the first time.

Getting Tricky Issues Right

(a)   In General

The first subpart provides general information related to subpoenas.  It, itself, is further subdivided.  Rather than regurgitate each rule, this Article focuses on the subparts that often cause confusion. 

Once such general requirement is simple to comply with, but sometimes overlooked nonetheless:  the subpoena must “set out the text of Rule 45(d) and (e)”—which govern how to protect a person subject to a subpoena, enforcement of a subpoena, and duties in responding to a subpoena.  FRCP 45(d)-(e).  This is an easy requirement to comply with, so make it part of your subpoena checklist if it isn’t already. 

Another requirement is that the subpoena must issue from the court where the action is pending.  FRCP 45(a)(2).  In other words, the court handling the underlying action must issue the subpoena.  Unlike under the prior rule, this applies regardless of the type of subpoena being issued (e.g., deposition, trial, discovery, etc.).  Although this is in-and-of itself a straightforward requirement, it can lead to confusion regarding enforcement of a subpoena. 

The most common mistake under this subpart is that—before a subpoena for any document production or premises inspection is served—all other parties must be provided adequate notice of it.  FRCP(a)(4).  Specifically, the rule states that “before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.”  FRCP(a)(4).  This means that each party must be served with a notice of the subpoena and a copy of the subpoena itself.  Although it is somewhat redundant to issue a notice in addition to the subpoena itself, the rule specifically requires this.  The rule does not specify how long a party must wait after serving the notice/copy on the parties before then serving it to whom it is directed.  Best practice would be to make sure that, however long you wait, you are able to back up the timing and show that service on the parties occurs prior to service on the party to whom it is directed.  Despite the clear language of the rule requiring service on parties occur first, in practice attorneys often provide service contemporaneously. 

Knowing this timing rule serves as a shield and a sword.  If you are issuing the subpoena you should make sure you comply with this timing requirement, because it will avoid delays that can occur if anyone objects to improper timing.  This rule can also be used as sword; if opposing counsel serves a subpoena on you contemporaneously with—or after—service on the non-party to whom it is directed, you will have grounds to object to the subpoena as improper.

Finally, the method of service on all parties and whether it must be filed with the court can vary.  Generally, FRCP 5 governs service of other papers to a party represented by an attorney.  In contentious litigation, the best course of action may be to both send an electronic copy (in compliance with FRCP(5)(b)(2)(E) depending on the electronic filing system or if there is written consent) and send via mail to the person’s last known address.  Personally, I prefer mailing the notice to the person’s last known address, since service should be complete upon mailing and since there is no consent requirement.  FRCP(5)(b)(2)(C).  In other words, the mailing satisfies service (it is a “mail sent” requirement, and not a receipt or actual notice requirement).  

As for filing, some courts allow or even require filing with the court.  Other courts do not allow Notices of Subpoena to be filed in the record, and if you do file them, some courts will delete them from the docket

(b)  Service

The next subpart governs service on the party to whom the subpoena is directed.  Since subpoenas are by their very nature directed to third parties, proper service is essential to obtain jurisdiction over the non-party.  Rule 45(b)(1) states, “[s]erving a subpoena requires delivering a copy to the named person.”  Yet, the Rule does not specify what form of service satisfies this requirement.  The safest method of service is hand-delivery/personal service, but courts are split on if this is required.  The law is unsettled, but the Fifth Circuit (along with the Ninth and D.C. Circuits) require personal service.   Robertson v. Dennis, 330 F.3d 696, 704 (5th Cir.2003)[1].  The safest method is to have the subpoena personally served.  Actual service can be complicated in some circumstances—especially recently given COVID-19 restrictions.  For instance, if you are trying to serve an individual, such as an expert, at their place of business, and their place of business is closed due to COVID-19, this could cause prolonged delays.

(c)   Place of Compliance

The final requirement of note is the 100-mile rule.  Generally speaking, this rule states that the place of compliance must be within 100 miles of where the person resides, is employed, or regularly transacts business in person.  FRCP 45(c)(1)-(2).  This requirement sounds simple enough, but if you are issuing a subpoena to someone out of the 100-mile range, it can be burdensome.  For example, if you are issuing a subpoena duces tecum, you must list a place of compliance within 100 miles of the person you are seeking the documents from—even though such documents are customarily produced electronically (making the 100-mile rule seem silly).  Resources like LAJ’s listserv can be a great resource for locating a place of compliance within the 100-mile limit, because other attorneys may be willing to accept document returns on your behalf at their office within the limit.

Conclusion

These are just a few examples of hiccups practitioners can encounter when trying to issue a subpoena under Rule 45 of the Federal Rules of Civil Procedure.  Differences between federal and state court procedure, confusion surrounding the 2013 amendment to the federal rule, and entrenched practice habits catch some practitioners unaware.  But, especially in contentious or high-stakes cases, strict compliance can be used as a shield and sword to further your case.

By Casey DeReus

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1 Chima v. United States Dep’t of Defense, 23 Fed. Appx. 721, 724 (9th Cir.2001); but see BNSF Ry. Co. v. Alere, Inc., No. 18-CV-291-BEN-WVG, 2018 WL 2267144, at *5 (S.D. Cal. May 17, 2018) (holding personal service not required but that service through Federal Express or certified mail would suffice); FTC v. Compagnie De Saint–Gobain–Pont–a–Mousson, 636 F.2d 1300, 1312–13 (D.C.Cir.1980)).