A search for law review articles and other secondary publications citing Rule 45 since the 1991 amendments became 1

effective reveals thousands of citations. Many of these documents merely cite the Rule without containing substantive

discussion. It is difficult to determine the extent of discussion of the Rule in each citation without reviewing all of the

documents individually. Because of the large number of secondary sources citing the rule, I have conducted searches

for more specific topics within Rule 45, searched in various Westlaw databases for documents containing Rule 45 in

the title, and reviewed a large sample of documents citing the rule in different Westlaw databases. I believe these

searches have uncovered most of the articles with substantial discussion of Rule 45’s application since the 1991

amendments, but I can continue to search for additional articles if the Subcommittee would like further review of

secondary literature.

MEMORANDUM

DATE: March 14, 2009

TO: Professor Richard Marcus

FROM: Andrea Kuperman

CC: Judge Lee H. Rosenthal

SUBJECT: Survey of Issues Regarding Federal Rule of Civil Procedure 45

This memorandum addresses issues that have been raised in commentary regarding Federal

Rule of Civil Procedure 45. The Discovery Subcommittee of the Civil Rules Advisory Committee

is currently exploring potential amendments to Rule 45. The Subcommittee requested that I survey

the commentary that has been published since the last amendments to Rule 45 became effective in

1991. The goal is to determine what issues have developed so that when the Subcommittee is

considering revisions to the Rule, it can address all issues that have come up regarding the Rule’s

application. In researching the secondary literature, I have focused largely on publications directed

to practitioners rather than law review articles, because publications directed to practitioners seem

more likely to identify difficulties that have come up in practice regarding application of Rule 45.1

Below is a list of topics that were discussed in the secondary literature I reviewed. Under each topic,

I have listed the articles that discuss that topic, followed by quotations or summaries of the Rule 45
2

discussion in the article.

Cost-Shifting Under Rule 45(c)(2)(B)

• William R. Maguire, Current Developments in Federal Civil Litigation Practice: Setting

Reasonable Limits in the Digital Era, 772 PLI/LIT 205 (2008).

• This article notesthat cost-shifting protectionsinRule 45(c)(2)(B) are mandatory, but

that “a subpoenaed non-party has to object to the subpoena first to preserve its right.”

Id. at 250 (citations omitted). The article explains that “[a]lthough the decisions are

somewhat inconsistent, manycourts hold that indemnification under Rule 45(c)(2)(B)

includes the reasonable cost of the labor expended to gather and review documents

for production, which may include attorneys fees for privilege review, in addition to

the actual costs of photocopying.” Id. (citations omitted).

• “Although the affirmative cost protections afforded under Rule 45(c)(2)(B) are

technically not triggered until the subpoenaed non-party has objected to production

and the party seeking discovery has made a motion to compel, the subpoenaed nonparty’s written response may properly include an objection on the ground that the

subpoena will impose an undue burden unless the party is indemnified for full costs

and expenses. Once a written objection is served, the party seeking disclosure can

either negotiate or make a motion to compel, knowing that the court hearing such a

motion must grant full costs and expenses to the responding party.” Id. at 253 (citing

FED. R. CIV. P. 45(c)(2)(B)(ii)).

• “It is therefore proper and effective for a non-party to demand that the party seeking

disclosure undertakes to reimburse the full costs of compliance, including attorneys’

fees, before the non-party will go forward with production.” Id.

• “It should be noted that some courts have been reluctant to apply Rule 45(c) literally.

For example, judges have declined to order reimbursement of a non-party’s costs

where the non-party was implicated in the events that gave rise to the lawsuit or could

otherwise be considered to have an interest in the outcome.” Id. at 254. “Courts

have sometimes looked at three factors to address this point: ‘whether the nonparty

actually has an interest in the outcome of the case, whether the nonparty can more

readily bear the coststhan the requesting party, and whether the litigation is of public

importance.’” Id. at 255 (quoting Linder v. Calero-Portocarrero, 180 F.R.D. 168,

177 (D.D.C. 1998)).

• Don Zupanec, Discovery Subpoena – Nonparty – Attorneys’ Fees, 19 NO. 8 FED.LITIGATOR

12 (2004).

• This article discusses McCabe v. Ernst & Young, LLP, 221 F.R.D. 423 (D.N.J. 2004),

which held that “[a] nonparty who fails to timely object to a discovery subpoena is not

entitled to reimbursement of attorneys’ feesincurred in responding to the subpoena.”

19 NO. 8 FED. LITIGATOR 12.

• In the “Litigation Tips” section, the article notes: “Significant here is the district

court’s assumption that attorneys’ fees incurred by a nonparty in complying with a

court order compelling production of subpoenaed documents are reimbursable under
3

Rule 45(c)(2)(B). Thisis not a universally held view. See United States v. CBS, Inc.,

103 F.R.D. 365 (C.D. Cal. 1984). Moreover, there may be a distinction between legal

fees incurred for a nonparty’s own benefit or for the benefit of the subpoenaing party:

the former may not be reimbursable while the latter may. See Florida Software

Systems, Inc. v. Columbia/HCA Healthcare Corp., 2002 WL 1020777 (W.D.N.Y.

2002), order vacated in part by, Florida Software Systems, Inc. v. Columbia/HCA

Healthcare Corp., 2002 WL 31022885 (W.D.N.Y. 2002).” Id.

• “Relevant factors in determining what costs the subpoenaing party should absorb

include: (1) the nonparty’s interest, if any, in the outcome of the litigation; (2)

whether the nonparty can more readily bear the coststhan the subpoenaing party; and

(3) whether the litigation has ‘public importance.’” Id. (citing In re Application of the

Law Firms of McCourts and McGrigor Donald, No. M 19-96(JSM), 2001 WL

345233 (S.D.N.Y. Apr. 9, 2001)).

• Don Zupanec, Discovery Subpoena – Compliance Costs – Reimbursement, 21 NO. 6 FED.

LITIGATOR 6 (2006).

• This article discusses Angell v. Kelly, 234 F.R.D. 135 (M.D.N.C. 2006), which held

that “[o]bjecting to a discovery subpoena does not entitle a nonparty to

reimbursement of costs incurred in complying with the subpoena where compliance

is voluntary.” 21 NO. 6 FED. LITIGATOR 6. Although the third party had objected to

the subpoena and stated its intention to claim reimbursement for attorney time spent

reviewing the documents, the court held that by voluntarily complying with the

subpoena, the third party had waived its right to recover costs. Id. The court

concluded that the expense of objecting is not a usual Rule 45(c) cost, but is

compensable under Rule 37(a), which authorizes awarding costs, including attorneys’

fees, incurred in opposing a motion to compel. With respect to the cost of complying

with the subpoena, the court held that a nonparty voluntarily complying with a

subpoena is not entitled to reimbursement of costs under Rule 45. Id. The court

found that any recovery had to be based on a voluntary agreement and that the

defendants had only agreed to compensate the third party for copying costs. Id.

• The article concludes: “To avoid forfeiting a right to reimbursement, object, and wait

for a court order before producing subpoenaed documents.” Id.

• Alan Blakley, Sharpen Your Discovery from Nonparties, 43-APR TRIAL 34 (2007).

• This article contains general discussion regarding obtaining electronic discovery from

nonparties. The article notes that one case has set out factors to consider in

determining whether to shift costs to the requesting party, including: the request’s

scope, the request’s invasiveness, the need to separate privileged material, the

nonparty’s financial interest in the litigation, whether the party seeking production

ultimately prevails, the relative resources of the party and the nonparty, the

reasonableness of the costs sought, and the public importance of the pending

litigation. Id. at 37 (citing Tessera, Inc. v. Micron Technology, Inc., No. C06-

80024MISC-JW(PVT), 2006 WL 733498, at *10 (N.D. Cal. Mar. 22, 2006)). “The
4

[Tessera] court took the factors from William W. Schwarzer et al., Federal Civil

Procedure Before Trial ¶¶ 11:2308-2309 (the Rutter Group 2004), which notes that

‘ordinarily, attorney fees and overhead costs will not be allowed.’ However, if the

subpoena is quashed, the court may impose sanctions that could include attorney

fees.” Id. at 37 n.14 (citing Schwarzer et al., at ¶ 11:2311).

• Document Production from Non-Parties – Trade Associations – Costs, 8 NO. 2 FED.

LITIGATOR 46 (1993).

• This article examines a subpoena at issue in In re The Exxon Valdez, 142 F.R.D. 380

(D.D.C. 1992), where the court held that “[a]lthough new Rule 45(c) requires the

discovering party to bear the major portion of a non-party’s costs of producing and

copying subpoenaed documents, a non-party trade association may have to bear that

portion of its costs that equals the percent of its income attributable to dues paid by

the parties opposing the discovering party.” Id. at 46. “The court stated that the new

rule’s mandatory language represented a clear change from former Rule 45(b) which

gave district courts discretion to condition the enforcement of a subpoena on the

discovering party’s paying the costs of production. The court also stated, however,

that protection from ‘significant expense’ does not necessarily mean that the

discovering party must bear the entire cost of compliance, particularly where, as here,

doubt has been cast on the subpoenaed party’s status as a non-party.” Id. at 47. The

article further notes: “The court stated that while it was clear that drafters of new

Rule 45 intended to expand the protection for pure non-parties such as disinterested

expert witnesses, there was no indication that they also intended to overrule prior

Rule 45 case law, under which a non-party could be required to bear some or all of

its expenses where the equities of a particular case demanded it. Under that case law,

it is relevant to inquire whether the putative non-party actually has an interest in the

outcome of the case, whether it can more readily bear its costs than the discovering

party, and whether the litigation is of public importance.” Id. (internal citation

omitted).

• Subpoena – Compliance Costs – Reimbursement, 14 NO. 7 FED. LITIGATOR 173 (1999).

• This article discusses In re First American Corp., 184 F.R.D. 234 (S.D.N.Y. 1998),

where the court found that “[l]egal fees incurred by nonparties in complying with an

order to produce documents or other materials in response to a subpoena are

reimbursable under F.R.C.P. 45(c)(2)(B).” 14 NO. 7 FED. LITIGATOR at 173. The

court granted a third-party’s request for reimbursement of certain expenses incurred

in complying with a subpoena, including legal fees, but found that “[p]rotection from

significant expense does not mean that the subpoenaing party necessarily must bear

the entire cost of compliance,” and that “[f]actors that are relevant in determining how

much of the cost isrecoverable include the nonparty’sinterest, if any, in the outcome

of the case, whether it can bear the cost more readily than the subpoenaing party, and

whether the litigation is of public importance.” Id. at 174 (citations omitted).

• In the “Litigation Tips” section, the article notes: “Typically, reimbursement covers
5

the cost of inspection and copying – the functions specifically referred to in the rule.

But nothing in the rule necessarily limits recovery to these costs. As the court pointed

out, the Advisory Committee Note states that nonparties ordered to comply with a

subpoena are protected against ‘significant expense resulting from involuntary

assistance to the court.’” Id.

• Alan Blakely et al., The SedonaConference® Commentary onNon-Party Production & Rule

45 Subpoenas, 9 SEDONA CONF. J. 197 (2008) [hereinafter Sedona Commentary].

• “Rule 45 contains a potential internal inconsistency that no court has yet addressed.

Well before the 2006 amendments, Rule 45(c)(2)(B)(ii) was amended to protect a

non-party under an order to compel from ‘significant expense’ related to the

production. There is a significant body of case law applying that requirement in the

pre-2006 amendment context. Rule 45(d)(1)(D) now has been amended to allow a

non-party to object to discovery that is ‘not reasonably accessible because of undue

burden or cost.’ The interplay between these two provisions has not yet been

examined. Must a non-party first object and show that the material sought by a

subpoena is not reasonably accessible due to undue burden or cost, and then when

opposing a motion to compel based on the same subpoena, plead ‘significant

expense?’ Are these standards the same? Will courts automatically protect a nonparty from ‘significant expense’ if, during the process, the non-party has shown

‘undue burden or cost?’” Id. at 199.

• “Whether a non-party will be able to shift the cost of attorney review is an open

question, but some courts have allowed such shifting.” Id. at 200 (citing In re

Application of the Law Firms of McCourts and McGrigor Donald, No. M. 19-96,

2001 WL 345233, at *3 (S.D.N.Y. Apr. 9, 2001); In re Auto. Refinishing Paint

Antitrust Litig., 229 F.R.D. 482, 496 (E.D. Pa. 2005)).

• “In Tessera[, Inc. v. Micron Tech., Inc., No. C06-80024MISC-JW(PVT), 2006 WL

733498 (N.D. Cal. Mar. 22, 2006)], the Northern District of California sets forth

eight factors in determining whether to shift cost to the requesting party: (1) the scope

of the request; (2) the invasiveness of the request; (3) the need to separate privileged

material; (4) the non-party’s financial interest in the litigation; (5) whether the party

seeking production of documents ultimately prevails; (6) the relative resources of the

party and the non-party; (7) the reasonableness of the costssought; and (8) the public

importance of the litigation.” Id. (footnotes omitted). The Sedona Commentary

suggests as a Best Practice that these factors be considered in connection with costshifting discussions. Id. at 202.

• John K. Villa, The Subpoena Surprise: Cost-Shifting in Discovery Requests, 24 NO.6 ACC

DOCKET 76 (2006).

• “[T]he failure to timely object can constitute a waiver of the nonparty’s right to

reimbursement: a prerequisite to the nonparty’s invoking these protections is service

of written objections or conditioning compliance on the reimbursement of expenses

within the 14-day period. Thus a nonparty cannot first comply with a subpoena and
6

later seek reimbursement for the costs of compliance.” Id. at 77 (footnote omitted).

• “As construed by one court, there are only two inquiries under subsection (c)(2)(B):

‘whether the subpoena imposes expenses on the non-party, and whether these

expenses are ‘significant.’’ What is ‘significant expense’? In making this

determination the court has discretion and may considerfactors such as the nonparty’s

interest in the outcome of the litigation or even the nonparty’s superior ability to bear

the costs of production.” Id. (footnotes omitted).

• “Even if the subpoenaed party does not object, the court may as a matter of discretion

grant costs in ruling on the nonparty’s motion to quash claiming undue burden. It

does so by conditioning enforcement of the subpoena on the issuing party’s payment

of these costs. In making this determination courts have considered: the scope of

discovery; the depth of the invasion involved in the request; the extent to which the

producing nonparty must separate responsive information from privileged or even

irrelevant material; and the reasonableness of the expenses. Also relevant is the

nonparty’s interest in the outcome of the litigation.” Id. at 77–78 (footnotes and

internal bullet points omitted).

• John F. Baughman & H. Christopher Boehning, Amended Rule 45, Shifting Non-Party

Attorney’s Fees, 10/24/2006 N.Y. L.J. 5, (col. 1) (2006).

• This article discusses uncertainty in whether attorneys’ fees can be shifted after the

electronic discovery amendments, noting that “[i]t is clear that courts have the

authority to shift attorney-review costs from non-party subpoena recipients onto

requesting parties, and [that] in the world of paper discovery, such shifting did

happen.” Id. The article notes that a three-factor test was developed for shifting

attorneys’ fees in In re Application of the Law Firms of McCourts & McGrigor

Donald, No. M. 19-96, 2001 WL 345233 (S.D.N.Y. Apr. 9, 2001), including “(1)

whether the non-party actually had an interest in the outcome of the litigation, (2)

whether the non-party could more readily bear the costs than the requesting party, and

(3) whether the litigation was of public importance.” 10/24/2006 N.Y. L.J. 5.

• The article notes that “cost-shift of attorney’s fees has been slow to manifest itself in

the world of e-discovery,” but suggests that the factors used by the Zubulake

decisions for cost-shifting, although outside the context of nonparty subpoenas, would

provide a useful framework for considering cost-shifting of attorneys’ fees for

reviewing electronically stored information. Those factors include: (1) “The extent

to which the request is specifically tailored to discover relevant information”; (2) “The

availabilityofsuch information from other sources”; (3) “The total cost of production,

compared to the amount in controversy”; (4) “The total cost of production, compared

to the resources available to each party”; (5) “The relative ability of each party to

control costs and its incentive to do so”; (6) “The importance of the issues at stake

in the litigation”; and (7) “The relative benefits to the parties of obtaining the

information.” Id. The article argues that the first two factors have particular

relevance to the nonparty context. Id. Finally, the article argues that “because the

presumption that producing parties must bear their own review costs does not

necessarily hold true in the non-party context, the Zubulake court’s outright rejection
7

of attorney-review cost shifting in the circumstances of that case need not be a bar to

shifting such costs in favor of non-parties once amended Rule 45 takes effect.” Id.

Sanctions (Against Either the Requesting Party or the Subpoenaed Party)

• Document Production from Non-Parties – Trade Associations – Costs, 8 NO. 2 FED.

LITIGATOR 46 (1993).

• This article explains that the only sanction available under Rule 45 is contempt:

“Plaintiffs sought sanctions under F.R.C.P. 37 (discovery sanctions). The court held,

however, that Rule 37, by its terms, applies only to a motion to compel production

from a party under Rule 34. Rule 34, in turn now provides that motions to compel

production from non-parties are governed by Rule 45. The only sanction provided

by Rule 45 is contempt. Contempt was not available here because API had timely

objected to the subpoena, and plaintiffs had not attempted to obtain an order

compelling production for more than a year.” Id. at 48.

• Gregory P. Joseph, Assessing Federal Rule 45, 12/28/92 NAT’L L.J. 23, (col. 1) (1992).

• “If the serving party fails to provide other parties to the lawsuit with the requisite

notice that the document subpoena has been served, the likely remedy is preclusion

from offering the produced documentsinto evidence at trial.” Id. (citing BASF Corp.

v. Old World Trading Corp., No. 86 C 5602, 1992 WL 24076 (N.D. Ill. Feb. 4,

1992)).

• “If the recipient should decline to produce properly subpoenaed documents, Rule 45

specifies a contempt remedy. A new second sentence added to subdivision (e) of the

rule in 1991 eliminates contempt power, however, if the third party is required to

travel more than 100 miles to produce the documents or attend a deposition.” Id.

(footnote omitted).

• “Rule 37 sanctions are applicable only to motions to compel brought for violation of

Rule 34. Rule 34(c) was amended in December 1991 to provide that nonparty

document production is compelled not pursuant to Rule 34 but, rather, pursuant to

Rule 45. Accordingly, no Rule 37 sanctions are available for third-party

noncompliance with a document subpoena.” Id. (footnotes omitted).

Nonparties’ Duty to Preserve

• Alan Blakley, Sharpen Your Discovery from Nonparties, 43-APR TRIAL 34, 39 (2007)

(noting that “[n]o rule requires a party or nonparty to enter a litigation hold – to preserve any

materials that may be relevant to potential or pending litigation,” but that such a duty “has

developed from the law of spoliation and sanctions as a common law duty”).

• Sedona Commentary, supra.

• “Some courts place a burden on the party to have the non-party preserve the

evidence. And at least one court has ruled that the issuance of a subpoena to a third

party imposes a legal obligation on the third party to preserve information relevant to

the subpoena including ESI, at least through the period oftime it takes to comply with

the subpoena and resolve any issues before the court.” Id. at 199 (footnotes omitted).

“Case law does not require a non-party to continue to preserve materials after they
8

have taken reasonable measures to produce responsive information.” Id.

• Among the suggested Best Practices is the suggestion that “[a]bsent a contractual or

other special obligation, the non-party’s duty to preserve typically begins upon receipt

of a subpoena.” Id. at 202.

Service of Subpoenas

• Alan N. Greenspan, Process and Subpoenas in Federal and Texas State Courts, 46 BAYLOR

L. REV. 613 (1994).

• “No rules or case law in either federal or state court address service of subpoenas on

corporations, partnerships, or other business entities. In federal court, the court in

Matter of Electric & Musical Industries, Ltd., [155 F. Supp. 892 (S.D.N.Y. 1957)],

implied that service may be accomplished by the methods provided in Rule 4. It

would seem logical to rely on the method most likely to provide actual notice to the

witness.” Id. at 630 (footnotes omitted).

• Orlee Goldfeld, Note, Rule 45(b): Ambiguity in Federal Subpoena Service, 20 CARDOZO L.

REV. 1065 (1999).

• “[H]istorically, most courts have held that Rule 45 requires personal service, which

mandates that the person serving the subpoena must physically hand the subpoena to

the witness. These courts have held other types of service invalid. However, . . .

some courts have recently held that substituted service satisfies the Rule’s service

provision.” Id. at 1065–66 (footnotes omitted).

• “Rule 45’s service requirement is ambiguous and has led to conflicting holdings in

different jurisdictions, leaving practitioners unable to rely on the Rule’s language.

These holdings have caused a state of confusion regarding which methods of service

attorneys may employ to properly serve witnesses with subpoenas. Until there is

some clarification asto Rule 45’sservice provision, practitioners will remain uncertain

as to whether they have choices regarding service of subpoenas.” Id. at 1066

(footnotes omitted).

• “The position adopted by most courts (‘majority position’) is that Rule 45 limits

‘delivering’ to personal, in-hand service. At the time of the Rule’s last amendment

in 1991, no court had deviated from such a position. Since that time, however, a few

courts have begun a new trend of allowing other methods of subpoena service

(‘minority position’). Many other courts have not yet spoken on this issue, leaving

practitioners and commentators uncertain as to the Rule’s requirements.” Id. at 1071

(footnotes omitted).

• “In addition, unlike service of papers other than a summons[,] some courts have not

permitted service of a subpoena on a witness’s attorney or any other person.” Id. at

1072 (footnotes omitted).

• “Courts have articulated several grounds for holding that Rule 45(b) permits only

personal service. First, courts have looked at the language of the Rule and have

found that it does not authorize any other method of service. Because the Rule’s

language states only that service shall be made by ‘delivering’ a copy of the subpoena
9

to the witness, courts have found that, when the drafters of the Rule used the word

‘delivering’ without anyelaboration, theyintended personal delivery only and rejected

any other method of service.” Id. at 1073 (footnotes omitted). “In addition, courts

have reasoned that Rule 45 exclusively requires personalservice because its language

does not provide courts with any discretion to authorize other methods of service,

leaving the courts’ proverbial hands tied.” Goldfeld, supra, at 1073. “Apart from

language, courts have cited precedent as a reason for not permitting any other type

of service.” Id. at 1074 (footnote omitted). The article notes that courts have also

relied on treatises and commentators that “summarily maintain, without any

explanation, that Rule 45(b)’s service provision requires personal service.” Id.

(footnote omitted).

• “[A] strong policy reason justifies the minority position, since permitting substituted

service helps dovetail subpoena service with the overriding spirit of efficiency of the

Federal Rules as detailed in Rule 1 of the Federal Rules . . . .” Id. at 1077.

• “If Rule 45 only allows personal service, as courts in the majority position hold, a

requirement of specifying the manner of service when filing proof of service [as

provided in FED. R. CIV. P. 45(b)(3)] would be superfluous and unnecessary.” Id.

(footnotes omitted).

• The article also notes differences betweenRule 4 and Rule 45: “For example, Rule 45

does not include a provision on how service is to be effectuated upon a corporation.

Thus, courts have adopted the requirements of Rule 4(h) to determine how to serve

a corporation with a subpoena. . . . Rule 45 incorporates state law only with regard

to the place ofservice. Rule 45 providesthat a subpoena may be served ‘at any place

within the state where a state statute or rule of court permits service of a subpoena

issued by a state court of general jurisdiction sitting in the place of the deposition,

hearing, trial, production, or inspection specified in the subpoena. Rule 45 does not

include state provisions on the method of service. Thus, while a plaintiff may serve

a summons in any way permitted by both federal and state law, that same plaintiff is

limited with regard to service of a subpoena. Although the subpoena may only be

served by the method or methods authorized by federal law—which itself is

unclear—the location forservice may be governed by the law ofthe state in which the

federal district court sits.” Id. at 1081–82 (footnotes omitted). The author argues

that the methods of service permitted in Rules 4 and 45 should be consistent.

Goldfeld, supra, at 1082.

• “All states have provisions for subpoenas that include service requirements. An

examination of the states’ subpoena service rules reveals that, although they based

their rules on the Federal Rules, many states have deviated from Rule 45. This

deviation suggests that states have rejected the language of Rule 45 because it does

not adequately meet the states’ requirements for subpoena service.” Id. at 1082–83

(footnotes omitted).

• “Methods of substituted service that are reasonably calculated to reach the witness

should be embraced as alternatives to personal service. These methods of service

afford reliable means of transmitting a subpoena to witnesses and are less costly and

less time-consuming than personal service. The alternative means of service
10

permissible under Rule 4 and state subpoena provisions provide a good starting point

from which to explore those substituted service methods that Rule 45 should permit.”

Id. at 1086–87 (footnotes omitted).

• The author suggests that the following alternative methods of service be permissible

under Rule 45: “registered or certified mail with return receipt requested . . .”; “abode

service”; and service “on a nonparty’s agent.” Id. at 1087–88.

• “A motivation for clarifying Rule 45’sservice requirement is the elimination of courts’

adjudication of what constitutes proper service under Rule 45. Litigants would

conserve judicial resources if they no longer burdened courts with this issue. A

hearing or motion practice relating to service of a subpoena shifts the parties’ and the

court’s focus from the merits of the case to an ancillary issue, incurs additional

expenses for litigants, and expends the court’s resources.” Id. at 1088.

• “To obviate the need for judicial determination of Rule 45’srequirements, the drafters

of the Rule should clarify its service provision. This may be achieved by amendment

to the language of Rule 45(b). If the drafters of the amendment wish to follow the

majority position, they should insert the word ‘personally’ into the text of the Rule.

The language of the Rule should then read: ‘Service of a subpoena upon a person

named therein shall be made by delivering a copy thereof to such individual personally

. . . .’ Alternatively, and preferably, the service provisions of Rule 45 should mimic

Rule 4’s service provision, which provides several different modes of service. Rule

45 should permit varied methods of service that are reasonably calculated to reach

nonparties and provide them with notice of litigants’ requests for information. The

proposed language of the revised Rule 45(b) should therefore state:

Service of a subpoena upon a person named therein shall be made by

delivering a copy thereof to the individual personally; or by leaving a

copy thereof at the individual’s dwelling house or usual place of abode

with some person of suitable age and discretion then residing therein

and by mailing an additional copy thereof by first class mail to the

individual at the dwelling house or usual place of abode; or by mailing

a copy of the subpoena by certified or registered mail, return receipt

requested; or by delivering a copy thereof to an agent authorized by

appointment or by law to receive service of process.”

Id. at 1089 (footnotes omitted).

• John E. Bowerbank, Do’s and Don’ts About a Nonparty’s Response to Federal and State

Court Deposition Subpoenas Involving Civil Litigation, 48-JUNORANGECOUNTY LAWYER

38, 41 (2006) (“Unlike a summons and complaint, there is no substitute service of a

subpoena. In both federal and [California] state court, the subpoena must be personally

served on the nonparty.”).

• Don Zupanec, Subpoena Duces Tecum – Service, 20 NO. 11 FED. LITIGATOR 12 (2005).

• This article examines the decision in Hall v. Sullivan, 229 F.R.D. 501 (D. Md. 2005),
11

which held that “[a] subpoena requiring production of documents by a nonparty need

not be served personally.” 20 NO. 11 FED. LITIGATOR 12. The court noted that

“delivering” in Rule 45 is not defined, that Rule 45(b)(1) says nothing about personal

service, and that Rule 4(e) states that a summons and a complaint may be served

“personally,” pointing out that “personally” could have beenincluded in Rule 45(b)(1)

if personal service was required. Id.

• The article explains: “This is an issue on which agreement remains elusive. The

traditional (and probably still predominant) position isthat a subpoena must be served

personally, i.e., by delivering it in-hand to the person served. However, a number of

recent rulings reject the personal service requirement and allow service by other

means. These include certified mail, Federal Express, or substituted service as

provided for by F.R.C.P. 5(b). Service as provided for by state rules may also be

permissible.” Id. (internal citations omitted).

• Only Personal ServicePermissible for Subpoena; Mail Service Quashed, 24 SIEGEL’S PRAC.

REV. 4 (1994) (“Personal delivery is the only method specified for a subpoena, which is a

contrast to service of a federal summons under Rule 4, for which a variety of methods are

available.”; noting one case that upheld certified mail as proper service of a subpoena, but that

New York federal cases have held that mail service is not sufficient).

• Need to Serve a Subpoena? Put It in the Mail, 9 NO. 8 FED. LITIGATOR 240 (1994) (noting

that in Doe v. Hersemann, 155 F.R.D. 630 (N.D. Ind. 1994), the court found that a subpoena

could be served by certified mail and that hand delivery is not always required).

• State Methods Also Apply to Federal Subpoena, so State Substituted Service Is Available for

Subpoenas, Too, 72 SIEGEL’S PRAC. REV. 4 (1998).

• This article notes that in King v. Crown Plastering Corp., 170 F.R.D. 355 (E.D.N.Y.

1997), the court held that despite the majority position requiring personal service of

subpoenas, Rule 4(e), which adopted state methods for summons service, should also

apply to subpoenas. 72 SIEGEL’S PRAC. REV. 4. The court noted that “by requiring

proof ofservice to refer to the ‘manner ofservice’, Rule 45(b)(3) necessarily implies

that several methods are possible.” Id. The article states: “While this seems to us a

supportable construction, the mere fact that the majority view is to the contrary

suggests that it is best, if at all possible, to effect the service of the subpoena by inhand delivery.” Id.

• Richard G. Placey, Developing Evidence from Nonparties, 25 NO. 3 LITIGATION 32 (1999)

(noting that subpoenas must be personally served under FED. R. CIV. P. 45).

• Jason A. Grossman, Federal Court Discovery, 642 PLI/LIT 331 (2000).

• “Service of a subpoena, however, is not governed by FRCP 5, but rather by FRCP 45.

FRCP 45 provides that a subpoena must be served by delivering a copy of the

document to the person named therein (i.e., personal in-hand delivery) . . . . As such,

substitute service is not an option for the service of a subpoena. However, required
12

notice of the subpoena that must be served upon all parties to the action may be

served in accordance with FRCP 5.” Id. at 339 (footnote omitted).

• Adrienne B. Koch, Service of Subpoenas Under Rule 45 and the Influence of Treatises,

7/1/2004 N.Y. L.J. 4, (col. 4) (2004).

• This article argues that there is confusion in the treatises and case law as to whether

personal service of subpoenas is required. It argues that Rule 5 defines “delivering”

and distinguishes it from other methods of service. Id. The article points out that the

language in Rule 45 can be contrasted with the language in Rule 4, providing methods

for service that include personal delivery, which, according to the article, “suggests

that the drafters understood how to provide for personal delivery when they intended

to do so.” Id. The article further argues that any doubt about the meaning of

“delivering” in Rule 45 should have been dispelled in 1991 when Rule 45(b)(3) was

added to provide that proof of service would include an indication of the manner of

service. Id.

• The article argues that the issue has been resolved by a Second Circuit decision that

has largely been ignored. It points out that in First City, Texas – Houston, N.A. v.

Rafidain Bank, 281 F.3d 48 (2d Cir. 2002), the Second Circuit affirmed a district

court holding that service was valid under the parties’ agreement and Rule 45 when

the subpoena had been left in a conspicuous place at the bank’s agent’s place of

business. The article arguesthat “[b]y holding that this manner of service – which did

not involve personal delivery, but did involve ‘delivery’ in a manner expressly

included in Rule 5’s definition ofthe term[specifically, in Rule 5(b)(2)(A)] – satisfied

the requirements of Rule 45, the Second Circuit appears to have resolved an issue that

had been the subject of a conflict among the lower courts.” Id. The article laments

that “the Second Circuit did not mention that it was resolving such a conflict,” and

states that “the extent to which the potential import of this decision willbe recognized

remains to be seen,” and that “[t]he treatises have continued to express the view that

personal delivery isrequired as a matter of law in the Second Circuit.” Id. The article

also notes that the treatises and case law have relied on Federal Trade Commission

v. Compagnie de Saint-Gobain-Point-a-Mousson, 636 F.2d 1300, 1312–13 (D.C.

Cir. 1980), to find a personal delivery requirement in Rule 45, but argues that that

case considered only whether a Federal Trade Commission subpoena was properly

served on a foreign corporation by registered mail and only looked to Rule 45 by way

of analogy. Id.

• The article contends that “Rule 5 provides a workable and clear standard in its

definition of ‘delivery’ as a subset of the types of ‘service’ it describes,” but notes that

“no court has adopted it,” and that “some courts that have rejected a personal service

requirement under Rule 45 have permitted service in ways inconsistent with Rule 5’s

definition of ‘delivery.’” Id. (footnote omitted).

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197 (1992).

• “No change is made in method [of service], alas. The method is still by ‘delivering’
13

the subpoena to the person to be served. Subdivision (b)(1). The substituted

methods available for summons service under Rule 4 are not available for a subpoena,

such as by delivery to a person ofsuitable age and discretion at the witness’s dwelling

house under Rule 4(d)(1). The word ‘delivering’ has been rigidly construed.” Id. at

207 (citing Fed. Trade Comm’n v. Compagnie de Saint-Gobain-Pont-A-Mousson,

636 F.2d 1300 (D.C. Cir. 1980)).

Requirement of Notice to Other Parties

• Henry L. Hecht, How to Prepare and Serve a Federal Notice of Deposition or Subpoena

(with Forms), 18 No. 6 Prac. Litigator 9 (2007).

• “A party noticing a deposition of any person must give ‘reasonable notice’ in writing

to every other party to the action. Rule 30(b)(1). The Rule for issuance of a

Subpoena does not specify a statutory notice period, but the rule does refer to

‘reasonable time for compliance.’” Id. at 11 (citing FED. R. CIV. P. 45(c)(2)).

• Subpoena – Notice – Service, 14 NO. 2 FED. LITIGATOR 44 (1999).

• This article discusses Biocore Medical Technologies, Inc. v. Khosrowshahi, 181

F.R.D. 660 (D. Kan. 1998), which held that “‘[p]rior notice’ of a nonparty subpoena

for production or inspection is notice prior to service, not notice prior to the return

date.” 14 NO. 2 FED. LITIGATOR at 44.

• In the “Litigation Tips” section, the article notes: “Rule 45(b)(1) requires ‘prior

notice’ to each party. The purpose is to give parties an opportunity to object to the

subpoena. Objection would not be possible if notice were sufficient as long as it is

given prior to the return date. Since service by mail is complete upon mailing (Rule

5(b)), notice could be mailed aslate as one day before the return date. Obviously, this

would effectively eliminate any opportunity to object.” Id. at 45.

• Gregory P. Joseph, Assessing Federal Rule 45, 12/28/92 NAT’L L.J. 23, (col. 1) (1992) (“If

the serving party fails to provide other parties to the lawsuit with the requisite notice that the

document subpoena has been served, the likely remedy is preclusion from offering the

produced documentsinto evidence at trial.”) (citing BASF Corp. v. Old World Trading Corp.,

No. 86 C 5602, 1992 WL 24076 (N.D. Ill. Feb. 4, 1992)).

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197 (1992).

• “[T]he party who has to rely on a subpoena under Rule 45 to get those papers, or for

that matter on any other judicial process, can’t do it without notice to all other parties

to the action. Under the last sentence of subdivision (b)(1) of Rule 45, the party who

seeks pretrial production of documents from a non-party through use of a subpoena

duces tecum must serve notices on all the other parties. This requirement of notice

of a pretrial subpoena duces tecum is analogous to what Rule 30(b)(1) requires when

it is a deposition that is sought of a person (party or nonparty): all the other parties

must be given notice of the time and place of the examination and of all related

particulars.” Id. at 207.
14

• Roger W. Kirst, Filling the Gaps in Federal Rule 45 Procedure for Nonparty Nondeposition

Document Discovery, 205 F.R.D. 638 (2002).

• This article discusses what the author views as a gap in Rule 45 regarding protection

for the party who is the subject of the documentsto be produced by a nonparty. “The

single mention of an undefined period of prior notice in Rule 45(b)(1) creates a risk

that the party who is the subject of the documents will be harmed by improper

disclosures before that party has a chance to object or seek a protective order.” Id.

at 638. “Since the period of notice is not defined, every party can only guess about

how watchful they must be for a nondeposition subpoena seeking their records from

a nonparty. A growing list of reported decisions that document instances in which

prior notice was not given provides a reason to reexamine the details of Rule 45.” Id.

The author laments that “the 1991 amendment [to Rule 45] created a procedure that

appears to require no cooperation at all. Counsel does not have to coordinate

schedules with anyone, does not have to arrange for a court reporter or a location for

a deposition, and does not have to ask anyone else to issue the subpoena.” Id. at 640.

• “The courts that have written opinions have consistently held that the party serving

the subpoena must provide prior notice, but they have not answered all of the

questions about Rule 45(b)(1). Recent trial court opinions hold that the prior notice

must precede issuance of the subpoena, but have not tried to define the period of

notice.” Id. at 641 (citing Schweizer v. Mulvehill, 93 F. Supp. 2d 376, 411 (S.D.N.Y.

2000); Murphy v. Bd. of Ed., 196 F.R.D. 220 (W.D.N.Y. 2000)).

• “Other reported cases have shown where the language of Rule 45(b) is incomplete.

For example, some courts have borrowed the 14-day time limit in Rule 45(c)(2)(B)

during which the nonparty is required to comply with the subpoena and held that a

later objection from the party who is the subject of the documents is untimely.” Id.

(citations omitted). “The only way to be sure a party who is the subject of the

documents will have time to object is to provide notice to all parties before the

subpoena is served on the custodian. The courts have agreed with that conclusion

when the issue has been raised, but they have not defined the amount of notice that

is required or suggested where a party might turn for an authoritative definition of an

adequate time.” Id. at 642.

• One proposal suggested in the article is that state rules requiring notice to other

parties of nonparty document subpoenas could be adopted in federal court. “The

most common state adaptation has been a definition of a specific period of notice to

all other parties in order to allow them to object or take other action.” Id. “[T]he

consensus of the state adaptations of Rule 45 is that the best rule would require notice

to all parties for the defined period before the subpoena is served,” and “that an

objection should be sufficient to stop issuance and service of a nonparty

nondeposition subpoena.” Id. at 644.

• Another suggestion in the article is that the scheduling order can address gaps in Rule

45. Id. at 643–45.

• “The language of Rule 45 does not address the procedure to follow if an objection

prevents a party from using the nonparty nondeposition subpoena to obtain
15

documents. The most direct procedure under the current rules may be a motion by

the party seeking the documents for an order under Rule 26(c). While the catchline

refers to a protective order, the language of the rule permits the court to decide

whether the material is discoverable and the methods by which it may be obtained.

The cross reference in Rule 26(c) to Rule 37(a)(4) also permits the court to assess

expenses and attorney’s fees for bad faith efforts to obstruct a proper discovery

request.” Id. at 644.

• “At present[,] Rule 45 does not define how or whether the other parties can get

duplicate copies of the documents provided by the nonparty in response to the

subpoena. The emphasis in Rule 45(c)(1) on protecting the non-party from burdens

and expense suggeststhat a single production should be sufficient and that the parties

should be able to share the additional copying and distribution, but cooperation

among counsel to reduce the burden on a nonparty may not happen in a contentious

case. This may be a less frequent problem when a deposition is used to obtain records

because the court reporter is responsible for producing the transcript and exhibits, but

the use of a nondeposition subpoena means there is no court reporter. The details of

the cooperation required by Rule 45(c) could also be addressed in the scheduling

order.” Id.

Resisting Subpoenas – Burden Shifting

• John E. Bowerbank, Do’s and Don’ts About a Nonparty’s Response to Federal and State

Court Deposition Subpoenas Involving Civil Litigation, 48-JUNORANGECOUNTY LAWYER

38 (2006).

• “A common misconception about nonparty deposition subpoenasis that a responding

nonparty (or party other than the subpoenaing party) can always file written

objections to any subpoena to shift the burden to the demanding party to move to

compel compliance with the subpoena. Beware: simply serving written objections is

insufficient in certain cases.” Id. at 43.

• “Whether a nonparty can merely serve written objections depends on the type of

subpoena. In federal court a nonparty (or litigant) challenging a subpoena for

‘testimony only’ must bring a motion to quash, motion to modify the subpoena, or

motion for a protective order prior to the date of production. However, a nonparty

responding to subpoenas involving production of documents can merely serve written

objections to shift the burden to compel production to the subpoenaing party.” Id.

(citing FED. R. CIV. P. 45(c)(2)(B)).

• Jason A. Grossman, Federal Court Discovery, 642 PLI/LIT 331 (2000).

• “A person commanded to produce documents may, within 14 days after service of the

subpoena (or before the time specified for compliance ifsuch time is less than 14 days

after service), serve upon the party designated in the subpoena a written objection to

inspection or copying of any or all of the designated materials. (see FRCP 45(c)(2)).

If such an objection is made, the party serving the subpoena is not entitled to inspect

and copy the materials (or inspect the premises) except pursuant to an order of the

court by which the subpoena was issued. It is important to note that this 14-day time
16

limit for objections does not apply to deposition subpoenas.” Id. at 339.

• Michael Traynor & Lori Ploeger, Hot Topics in Electronic Discovery, 712 PLI/PAT 51, 61

(2002) (“If the subpoenaed party objects [to a subpoena requesting electronic information],

the burden is on the requesting party to seek an order compelling production.”) (footnote

omitted).

• Gregory P. Joseph, Assessing Federal Rule 45, 12/28/92 NAT’L L.J. 23, (col. 1) (1992) (“A

timely objection [to a subpoena for documents] frees the subpoenaed person from any

obligation to make production under subdivision (c)(2)(B). The burden is on the issuing party

to obtain an order compelling production.”).

• John P. Woods, Basics of Accounting for Lawyers 2008 : What Every Practicing Lawyer

Needs to Know, 1684 PLI/CORP 165, 187 (2008) (citing Bouwkamp v. CSX Corp., 2007 U.S.

Dist. Lexis 2834, at *5–6 (N.D. Ind. Jan. 12, 2007), for the proposition that the “‘objecting

party must show with specificity that the request is improper[’]”).

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197 (1992).

• Where the subpoenaed party feels there is inadequate time to respond to the

subpoena, “the subpoenaed person need only serve on the party or attorney

designated in the subpoena a ‘written objection’ to the production of the documents,

and that mere service of the objection shiftsthe initiative to the party in whose behalf

the subpoena was issued to move to compel compliance.” Id. at 208. “But the cited

provision [Rule 45(c)(2)(B)] doesn’t apply to the testimonial witness. If that witness

has some excuse for not appearing, the witnessfor its own protection, does best either

to appear or to move to quash before an appearance is due.” Id. at 238.

Return Time for Subpoena

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197, 207 (1992) (noting that no specific time period is set

forth in Rule 45 for when a subpoena is returnable, but that “[t]he bar understands the rule

to be that a ‘reasonable’ time must be allowed,” and “[w]hat is reasonable is not defined,” but

“depends on the circumstances”).

• Jason A. Grossman, Federal Court Discovery, 642 PLI/LIT 331, 338 (2000) (“There is no

fixed time limit for service of a subpoena under FRCP 45, as the same ‘reasonable’ notice

standard of FRCP 30 is a guideline.”).

Effect of Motion to Quash

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197, 239 (1992) (“While technically there is no automatic stay

of compliance upon the mere making of a motion to quash a subpoena, there is a general

understanding that compliance may be withheld until the court rules on the motion.”).
17

Electronic Discovery Issues Regarding Subpoenas

• John M. Barkett, E-Discovery Help May Be on the Way . . . Sort of: Civil Rules Advisory

Committee Proposal, 72 DEF. COUNS. J. 37 (2005).

• The article notes that under the proposed electronic discovery amendments, “the

respondent [to a subpoena] is protected ipso facto if the respondent ‘identifies’

electronically stored information ‘as not reasonably accessible,’” but questions

whether “the subpoena respondent has to advise anyone of this determination.” Id.

at 44. The article notes that “[b]ecause the proposed rules say the third-party

respondent ‘need not’ provide e-discovery that the person ‘identifies as not reasonably

accessible,’ one could argue that the standard is subjective and once the determination

of inaccessibility is made bythe subpoena recipient, a written objection is not required

because the respondent is then not obligated to provide discovery.” Id.

• “Assuming that the requesting party learnsthat an inaccessibility claim is being made

by the subpoena recipient, that party must then file a motion. It would appear that the

proposed rule contemplates that the mere filing of the motion challenging the claim

is enough to trigger a showing by the subpoena recipient that the information sought

is not reasonably accessible. Will the costs of addressing this motion be included

among those that the third partymight recover to receive the ‘protection’ afforded by

Rule 45(c)(2)(B)? The case law willhave to unfold before this question is answered.”

Id. at 44–45.

• “How much of a showing of inaccessibility must a subpoena recipient make? The

proposed rule sets no standard. The proposed Advisory Committee note to Rule 45

offers no guidance. Instead, the note focuses on the broader question of expense,

stating that the protections in Rule 45(c) should ‘guard against undue impositions on

nonparties.’” Id. at 45.

• Don Zupanec, Stored Communications Act – Discovery, 23 NO. 11 FED. LITIGATOR 12

(2008).

• This article discusses Flagg v. City of Detroit, 252 F.R.D. 346 (E.D. Mich. 2008),

which found that “[t]he Stored Communications Act does not preclude production

in civil litigation of electronic communications stored bya nonparty electronic service

provider.” 23 NO. 11 FED. LITIGATOR 12. In Flagg, the plaintiff served a nonparty

with a subpoena seeking text messages sent or received by City officials, some of

whom were defendants. Id. Some of the defendants moved to block the subpoena,

arguing that the Stored Communications Act, 18 U.S.C. § 2701 et seq., barred

production by a nonparty service provider absent the defendants’ consent. Id. The

court assumed that the plaintiffsought disclosure pursuant to a Rule 34 request to the

City rather than through a subpoena to the nonparty, and found that the City had the

obligation and ability to obtain the requisite consent for disclosure by the service

provider. Id.

• The article notes that the Eastern District of Virginia had recently found that the

Stored Communications Act does not include an implicit exception for disclosure of

protected electronically stored communications in response to a civil subpoena. Id.
18

(citing In re Subpoena Duces Tecum to AOL, LLC, 550 F. Supp. 2d 606 (E.D. Va.

2008)). “So, when protected communications are sought from a nonparty electronic

service provider and consent that would permit disclosure is denied (see §

2702(b)(3)), disclosure is barred.” Id. “The key is to keep disclosure pursuant to a

Rule 34 request for production, directed to a party to the litigation, rather than a Rule

45 subpoena to the nonparty electronic service provider. Assuming the party’s ability

to provide, expressly or implicitly, or to obtain, the consent necessary for the service

provider to divulge the requested communications, there is a way around the

obstacle.” Id.

Subpoenas in Arbitration

• Timothy C. Krsul, The Limits on Enforcement of Arbitral Third-Party Subpoenas, 57-JAN

DISP. RESOL. J. 30 (2003).

• “A two-step analysis helps to understand how the geographic limitation on the

enforcement of an arbitral subpoena works. The first step is to identify the proper

district court in which to file a petition to enforce the arbitrator’s subpoena. . . . [T]he

FAA requires the petition to be filed in the ‘district in which such arbitrators, or a

majority of them, are sitting.’ This is the only federal court that can legally enforce

the arbitrator’s subpoena, no matter where the witness works or resides.

The second step is to identify the jurisdictional limitations of the particular court.

Rule 45 of the Federal Rules, specifically, Rule 45(b)(2) and (c)[(3)](A)(ii), delineate

the court’sterritorialjurisdiction with respect to subpoenas. These provisions restrict

the district courts’ ability to enforce a subpoena to the area within 100 miles of the

courthouse or within the state in which the trial or the hearing is being held. Because

Section 7 [ofthe FAA] invokes Rule 45, thislimitation applies to the court’s authority

to compel a witness to attend an arbitration hearing. Thus, if a third party receives

an arbitral subpoena to appear at the hearing but fails to show up, the remedy the

FAA provides is to petition the district court in the district in which the panel is sitting

for an order to compel compliance with the subpoena. Alternatively, Section 7

authorizes the district court to punish the non-complying party for contempt.” 

Id. at 31–32 (footnotes omitted). 

• The author defines the problem: “In arbitration proceedings involving complex

commercial disputes, third parties often possess material records and other evidence

that are highly material to the issues in dispute. If they happen to reside and work

outside the territorial jurisdiction of the district court in which the arbitration is

pending, they cannot be compelled to comply with an arbitral subpoena. Therefore,

unless the third party agrees to cooperate, important evidence may not be obtained.”

Id. at 32.

• The article summarizes the case law: “In general, it appears that a third-party

subpoena for a deposition in an arbitration is not enforceable unless the parties have

specifically agreed to the deposition or to full discovery or have provided in their

arbitration agreement that the Federal Rules will apply. The enforceability of a
19

subpoena for documents is unclear if the witness resides outside the federal district

court where the arbitration is pending. Some courts have held that Rule 45’s

territorial limits do not apply to document subpoenas, but recently one court has held

that it does.” Id.

• “Assuming Rule 45 applies to document subpoenas as well as deposition subpoenas,”

the author believes that “arbitrators [should] be able to issue enforceable subpoenas

for documents from third parties, regardless of where they live.” Id. at 34. “Since an

arbitrator can subpoena documents of a person working or residing within 100 miles

of the district court in the district where the arbitrator is sitting, the territorial limit on

enforcement is purely arbitrary.” Id.

• The author also believes that arbitrators should be able to issue subpoenas for the

deposition of a third party in the district where the witness works or resides, without

requiring the parties to agree to broad discovery or to arbitrate under the Federal

Rules. The author proposes an amendment to Section 7 of the FAA to achieve this

result. Id.

• 2nd Circuit Limits Court’s Jurisdiction to Enforce Third-Party Subpoenas, 61-OCT DISP.

RESOL.J. 4, 4 (2006) (noting that in Dynegy Midstream Services, LP v. Trammochem, A.P.

Moller & Igloo Shipping, A/S, 451 F.3d 89 (2d Cir. 2006), the court held that “‘the Federal

Rules governing subpoenas to which Section 7 [of the FAA] refers do not contemplate

nationwide service of process or enforcement; instead, both service and enforcement

proceedings have clear territorial limitations.’”).

• Paul D. Friedland & Lucy Martinez, Arbitral Subpoenas Under U.S. Law and Practice, 14

AM. REV. INT’L ARB. 197 (2003).

• “While it is well-established that arbitrators may order discovery as between the

parties, there is a recently articulated divergence of opinion at the federal appellate

level as to whether pre-hearing discovery is available in relation to non-parties. At

the time of this writing, the Sixth Circuit has indicated a willingness to enforce nonparty arbitral discovery subpoenas, the EighthCircuit has enforced arbitral subpoenas

to non-parties for pre-hearing document production provided that the non-party is

sufficiently connected with the underlying dispute, the Fourth Circuit will enforce

such subpoenas only if a ‘special need’ is shown, and the Third Circuit will not

enforce such subpoenas under any circumstances.” Id. at 205.

• The authors propose: “Arbitrators should be empowered to issue judicially

enforceable pre-hearing discovery subpoenas to non-parties when (i) either the nonparty is sufficiently connected with the underlying dispute or (in the absence of such

a connection) there is a demonstrated ‘special need’ for the documents, and (ii) the

order will not impose undue burden on the non-party. Under this approach,

arbitrators retain flexibility to dispose of disputes as efficiently as possible, and courts

would be empowered to protect non-parties from over-reaching arbitral orders.” Id.

at 214.

• “[A] federal district court has no jurisdiction to compel compliance with an arbitral

order or subpoena served on a person (party or non-party) who resides outside of the
20

forumofthe arbitration, or at least more than 100 miles from the place of the hearing.

One way for an arbitral panel to overcome this territorial jurisdictional obstacle is

temporarily to relocate the arbitration hearing to within 100 miles of the subject of the

subpoena. The alternative to the contrivance of a temporary hearing is for the

arbitrator to issue the subpoena and for the requesting party to see if that suffices; if

not, the party can then seek assistance in the relevant jurisdiction.” Id. at 227

(footnotes omitted).

• “Under the FAA, in the EighthCircuit, the SixthCircuit, the SouthernDistrict of New

York, the Southern District of Florida and the Middle District of Tennessee, courts

will enforce arbitral subpoenas to non-parties for pre-hearing document discovery

(although at least in the Eighth Circuit and in the Middle District of Tennessee the

non-party must be sufficiently connected to the underlying dispute). In the Fourth

Circuit, such an order will be enforced under the FAA only upon a showing of special

need. In the Third Circuit, such an order will not be enforced under any

circumstances.” Id. at 228.

• “Under the FAA, courtsin the Fourth Circuit and the Southern District of New York

have to date refused to enforce arbitral orders of discovery depositions of nonparties. The issue has not been tested elsewhere, although such orders are probably

not enforceable in the Third Circuit. Case law in the EighthCircuit, the Sixth Circuit,

the Southern District of Florida and the Middle District of Tennessee suggests that

arbitral orders of discovery depositions of both parties and non-parties would be

enforced in those jurisdictions under certain circumstances.” Id. at 229.

• Dean W. Sattler, Note, Is There a Compelling Interest to Compel? Examining Pre-Hearing

Subpoenas Under the Federal Arbitration Act, 27 PACE L. REV. 117 (2006)

• “Because the FAA contains no such limiting language [on the power of arbitrators to

issue subpoenas], some courts have held that an arbitrator’s subpoena power should

be no greater than that of the federal district courts set forth in Rule 45 of the Federal

Rules of Civil Procedure. Using Rule 45 as a yardstick to measure an arbitrator’s

subpoena power on non-parties is both logical and fair. It uses a set of rules that is

tried, true and familiar. It specifically defines the discovery power parties will have

in a future arbitration, and places a lid on extreme or malicious tactics. Alarmingly,

however, there are some cases in which the courts have held that Section 7 [of the

FAA] vests the arbitrator with broad and unlimited subpoena power, beyond that set

forth in Rule 45.” Id. at 134–35.

• This article also argues that the 100-mile boundary in Rule 45 should be broadened

in certain circumstances in arbitration. The author suggests a modification of a fivepart test that had previously been proposed by Cathleen A. Roach regarding

amendments to Rule 45. Id. at 138. “Roach suggests that even for litigation, Rule

45 and its 100-mile boundary is archaic in the modern world. She notes that strict

adherence to Rule 45 can lead to absurd results, decreased judicial efficiency,

outrageous costs and unwarranted burdens upon the federal district courts . . . .” Id.

The five-part test proposed by Roach was:
 The holding in Integrity Insurance Co. wasrecently abrogated by Life Receivables Trust v. Syndicate 102 at Lloyd’s 2

of London, 549 F.3d 210 (2d Cir. 2008), which held that the FAA does not authorize arbitrators to compel prehearing

document discovery from nonparties. The Life Receivables Trust court recognized a circuit split as to whether Section

7 of the FAA allows prehearing document discovery from nonparties: “The Eighth Circuit has held that it does, see

In re Arbitration Between Sec. Life. Ins. Co. of Am., 228 F.3d 865, 870–71 (8th Cir. 2000); the Third Circuit has

determined that it does not, see Hay Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 407 (3d Cir. 2004); and

the Fourth Circuit has concluded that it may – where there is a special need for the documents, see COMSAT Corp.

v. Nat’l Sci. Found., 190 F.3d 269, 275 (4th Cir. 1999). Like the Third Circuit, we hold that section 7 does not enable

arbitrators to issue pre-hearing document subpoenas to entities not parties to the arbitration proceeding . . . .” Life

Receivables Trust, 549 F.3d at 212.

21

“1) To distinguish between types of witnesses (party or non-party)

and types of litigation (complex single district and multidistrict

litigation or simpler diversity actions); 2) to acknowledge that certain

types of litigation may benefit more from live testimony and crossexamination than other types of litigation; 3) to provide federal courts

with nationwide trial subpoena power for three categories of

witnesses—multidistrict litigation party witnesses, multidistrict

litigation non-party witnesses, and single district litigation party

witnesses; 4) to retain satellite testimony as an option for any of the

four categories of witnesses, subject to a proper showing of

necessity; and 5) to maintain a fairness element by authorizing the

court to conduct a balancing test in order to deny or vacate a

subpoena when undue hardship to the witness is shown.”

Id. at 138–39 (quoting Cathleen A. Roach, It’s Time to Change the Rule Compelling

Witness Appearance at Trial: Proposed Revisions to Federal Rule of Civil Procedure

45(e), 79 GEO. L.J. 81, 113 (1990)).

• Subpoena – Arbitration Proceeding – Pre-Hearing Document Discovery, 15 NO. 12 FED.

LITIGATOR 302 (2000)

• This article summarizes the decision in In re Security Life Insurance Co. of America,

228 F.3d 865 (8th Cir. 2000), where the court allowed a prehearing subpoena for

documents in arbitration to be issued to a third party. The article notes that “[t]his

result conflicts with the position recently taken by the Fourth Circuit that the FAA

does not authorize prehearing discovery from nonparties to arbitration.” 15 NO. 12

FED. LITIGATOR at 303 (citing COMSAT Corp. v. Nat’l Sci. Found., 190 F.3d 269

(4th Cir. 1999)).

• In the “Litigation Tips” section, the article explains: “While the availability of

nonparty discovery in arbitration proceedings is not entirely certain, it should be

possible, assuming the arbitrators can be convinced to issue a subpoena, to obtain

prehearing disclosure of documents from nonparties.” Id. (citing Brazell v. Am. Color

Graphics, Inc., No. M-82 AGS, 2000 WL 364997 (S.D.N.Y. Apr. 7, 2000); Integrity

Ins. Co. v. Am. Centennial Ins. Co., 885 F. Supp. 69 (S.D.N.Y. 1995); Meadows 2

Indemnity Co., Ltd. v. Nutmeg Ins. Co., 157 F.R.D. 42 (M.D. Tenn. 1994); Stanton
22

v. Paine Webber Jackson & Curtis, Inc., 685 F. Supp. 1241 (S.D. Fla. 1988)).

“What’s less likely is the possibility of subpoenaing a nonparty to appear for a

deposition. COMSAT Corp. finds no authority in the FAA for doing so. Nor does

Integrity Insurance. So this is a longshot at best.” Id.

• The article notes that the Eighth Circuit in Security Life Insurance “said that a

subpoena for production of documents does not require compliance with Rule

45(b)(2)’s territorial limit. The reason? The burden of producing documents does

not increase appreciably with an increase in distance. In other words, there is no

territorial limitation on an arbitration panel’s authority to order production of

documents.” Id.

• A similar discussion of the Security Life Insurance case is presented in Susan A.

Stone & Patricia M. Petrowski, The More We Learn the Less We Know: The

Continuing Uncertainty Regarding Nonparty Discovery in Arbitration, 16 NO. 21

ANDREWS INS. INDUS. LITIG. REP. 21 (2001), which notes that Security Life

Insurance failed to address the competing line of authority regarding subpoenas in

arbitration in COMSAT. The article also notes that “[t]he Eighth Circuit also

sidestepped the territorial reach [of subpoenas in arbitration] issue, acknowledging

that it presented a ‘thorny question indeed’ as respects witness testimony, but holding

that the territorial limit did not apply to an order for production of documents.” Id.

at n.2.

• Third Circuit Differs on Arbitration Production, 22 ALTERNATIVES TO HIGH COST OF LITIG.

74 (2004).

• This article discusses the holding in Hay Group Inc. v. E.B.S. Acquisition Corp., 360

F.3d 404 (3d Cir. 2004), which held that Section 7 of the FAA cannot be used to

issue nonparty document subpoenas. 22 ALTERNATIVES TO HIGH COST OF LITIG. at

74. The article notes that the Hay Group court disagreed with the Eighth Circuit

view in Security Life Insurance that there was implicit power to subpoena documents,

and disagreed with dicta by the Fourth Circuit in COMSAT that suggested that thirdparty subpoenas could be enforced under special circumstances. Id. at 74–75.

• The article also notes that Hay Group rejected the argument that the subpoena was

improper because production was sought beyond the district court’s jurisdiction.

“The consulting firm’s argument revolved around F.R.C.P. 45(b)(2), which says that

if a document request is separate from a subpoena for a witness’s attendance, then the

materials’ subpoena must be issued from a federal district court ‘in which the

production or inspection is to be made.’ The panel disagreed that this applies to

arbitration, where it said that witnesses can be directed to bring documents that are

beyond the federal rule’s territorial limits.” Id. at 75.

• Don Zupanec, Arbitration – Nonparties – Pre-Hearing Document Discovery, 19 NO. 5 FED.

LITIGATOR 10 (2004).

• This article also discusses the holding in Hay Group. The article notes that the

court’s “interpretation of § 7 is consistent with the way similar language in the pre1991 version of F.R.C.P. 45 was interpreted. Prior to 1991, Rule 45(a) stated that
23

a subpoena ‘shall command each person to whom it is directed to attend and give

testimony’ at a specified time and place. A subpoena ‘may also command the person

to whom it is directed to produce the books, papers, documents, or tangible things

designated therein.’ See Rule 45(a). This language was interpreted not to grant

courts power to issue document-only subpoenas to nonparties.” Id. (citing FED. R.

CIV. P. 45 Advisory Committee Notes (1991 amendments)).

• The article notes a split of authority regarding the availability of document subpoenas

in arbitration: “The availability of compelled pre-arbitration nonparty document

discovery remains a question in search of a definitive answer. This interpretation [in

Hay Group] of § 7 is consistent with the Fourth Circuit’s. See COMSAT Corp.,

supra. The Eighth Circuit takes the position that arbitrators have implied power

under § 7 to order nonparties to produce documents for review prior to a hearing.

See In re Security Life Insurance Co. of Am., 228 F.3d 865 (8th Cir. 2000), 00 Fed

Lit 302. So do a number of district courts. See, e.g., Brazell v. American Color

Graphics, Inc., 2000 WL 364997 (S.D.N.Y. 2000); MeadowsIndemnity Co., Ltd. v.

Nutmeg Insurance Co., 157 F.R.D. 42 (M.D. Tenn. 1994).” Id.

• Discovery Subpoena Issued by Arbitrator – Enforceability, 10 NO. 6 FED. LITIGATOR 172

(1995).

• This article discusses Amgen Inc. v. Kidney Center of Delaware County, Ltd., 879 F.

Supp. 878 (N.D. Ill. 1995), which held that “[w]here the parties had agreed to

arbitrate pursuant to the Federal Rules of Civil Procedure, a discovery subpoena

issued by the arbitrator to a nonparty was valid, and was enforceable through the

procedures provided for in F.R.C.P. 45(a)(3)(B).” 10 NO. 6 FED. LITIGATOR at 172.

The court dealt with a discrepancy between FAA § 7 and Rule 45. The court found

that there is no territorial limitation on an arbitrator’s subpoena power under Section

7 ofthe FAA, but that there was an issue with where the subpoena could be enforced.

While Section 7 provides for enforcement in the district where the arbitrator is

located, Rule 45 requires a subpoena to issue from the district where the deposition

is to take place. The difficulty was that the nonparty’s deposition was to be taken in

the Eastern District of Pennsylvania, but under Section 7, only the Northern District

of Illinois could determine the enforceability of the subpoena. Id. at 173. The court

held that the arbitrator’s subpoena was enforceable because the parties had agreed to

arbitrate under the FederalRules, which provide for liberal, nationwide discovery. Id.

However, attempts to enforce the subpoena in the Eastern District of Pennsylvania

would fail because the Northern District of Illinois was the onlyplace for enforcement

under the FAA. Id. The court solved this dilemma by directing the requesting party’s

attorney to issue a subpoena under Rule 45(a)(3)(B) that would be enforceable in the

Eastern District of Pennsylvania under Rule 45(a)(2). Id.

• The article notes: “The language of [§] 7 limiting enforceability to the district court

for the district where the arbitrator is located is in fact incompatible with the

requirement of Rule 45(a)(2) that a discovery subpoena issue from the court for the

district where discovery is to take place. So if discovery is to occur in a district other

than the one where the arbitrator is located, there does appear to be a crack through
24

which enforceability falls.” Id.

• Sean T. Carnathan, Discovery in Arbitration? Well, it Depends . . . , 10-APRBUS.L.TODAY

22 (2001).

• This article notes conflicting authority as to whether FAA § 7 provides arbitrators

with authority to compel pre-hearing discovery from third-party witnesses, but notes

that “the weight of authority interprets the section to authorize subpoenas to compel

pre-hearing document production.” Id. at 22 (citing Am. Fed’n of Television & Radio

Artists AFL-CIO v. WJBK-TV, 164 F.3d 1004, 1009 (6th Cir. 1999)). The article

notes that the primary authority to the contrary is in the Fourth Circuit, which has

found that “‘a federal court may not compel a third party to comply with an

arbitrator’s subpoena for pre-hearing discovery, absent a showing of special need or

hardship,’” but also notes that “[t]he Fourth Circuit has not developed a clear

definition of ‘special need or hardship.’” Id. at 23–24.

• With respect to deposition subpoenas, the article notes that “[g]iven the unsettled

state of the law, you cannot be confident of your right to enforce a deposition

subpoena during an arbitration proceeding.” Id. at 24–25. The author argues that

“[a]s a policy matter, a rule declining to enforce such subpoenas seems unwise. It is

easy for a court to recite the generalized bromide that an arbitration is designed for

faster, less expensive dispute resolution and, therefore, refuse to enforce a subpoena.

But not all arbitrations lend themselves to such a rule. Better judicial policy is to

leave to the arbitratorsthe decision whether to issue the subpoena, then stand behind

them once issued.” Id. at 25.

• This article also discusses the Amgen case, which devised a remedy for enforcing

subpoenas where witnesses are located outside the state of the arbitration. In Amgen,

the arbitrator, who was located in Chicago, issued a deposition subpoena to a

nonparty in Pennsylvania. When the nonparty refused to comply, Amgen moved to

compel in Pennsylvania, but the Pennsylvania district court rejected the motion

because the FAA requires that motions to compel be brought in the district where the

arbitration is located. After the action was transferred to the Northern District of

Illinois, Amgen again moved to compel compliance with the subpoena. The district

court recognized the dilemma that the FAA requires enforcement of subpoenas in the

district where the arbitration is located, but Rule 45(a)(2) requires that a subpoena

issue from the district where the deposition is to be held. To get around this, the

court ordered Amgen’s lawyer to issue a subpoena under FED.R.CIV.P. 45(a)(3)(B),

which allows “an attorney authorized to practice in the court in which the trialis being

held [to] issue and sign a subpoena on behalf of a court for a district in which a

deposition or production is to take place.” Amgen, 879 F. Supp. at 883. The article

explains: “Rule 45 would then permit Amgen to seek enforcement of the subpoena in

Pennsylvania, if necessary, even though the Pennsylvania court had declined to

enforce the arbitrator’s subpoena. Although under the FAA the Pennsylvania district

court could not directly enforce a subpoena issued by the arbitrator, under the Federal

Rules ofCivil Procedure, the court could enforce a subpoena issued by a lawyer based

on an FAA enforcement action in Illinois.” Carnathan, supra, at 25 (internal citation
 Not all courts have agreed with the Amgen approach. See, e.g., Dynegy Midstream Servs. v. Trammochem, 451 F.3d 3

89, 96 (2d Cir. 2006) (“We see no textual basis in the FAA for the Amgen compromise. Indeed, we have already held

that Section 7 ‘explicitly confers authority only upon arbitrators; by necessary implication, the parties to an arbitration

may not employ this provision to subpoena documents or witnesses.’”) (quoting NBC v. Bear Stearns & Co., 165 F.3d

184, 187 (2d Cir. 1999)). The Dynegy court continued: “Moreover, we see no reason to come up with an alternate

method to close a gap that may reflect an intentional choice on the part of Congress, which could well have desired

to limit the issuance and enforcement of arbitration subpoenas in order to protect non-parties from having to participate

in an arbitration to a greater extent than they would if the dispute had been filed in a court of law.” Id.

In addition, it is notable that the Amgen case was dismissed on appeal for lack of subject-matter jurisdiction

because “[t]he FAA grants the federal courts powers to assist arbitration only where the district court would have

jurisdiction over the underlying dispute.” Jerold S. Solovy & Robert L. Byman, Arbitration Discovery, 9/8/03 NAT’L

L.J. 24, (Col. 1) (2003) (citing Amgen Inc. v. Kidney Ctr. of Del. County Ltd., 95 F.3d 562 (7th Cir. 1996)).

25

omitted). The article arguesthat “[t]here is at least one major flaw in this reasoning”

because “[t]he ‘problem’ the Amgen court identifies – a conflict between the

procedure under FAA Section 7 and the procedure under Rule 45 – disappears if the

court interprets the FAA to authorize the arbitrator to issue subpoenas for hearings

only. If arbitration subpoenas are available only for hearings, the 100-mile

enforcement limitation in Rule 45 harmonizes with the FAA provision that

enforcement actions must be brought in the same district as the arbitration.” Id.

• Nonetheless, the article recognizes that “the modern trend clearly permits at least

some discovery in arbitration,” and notes that “[o]ne commentator has suggested that

the solution is to move the arbitration temporarily to the district where the discovery

is sought.” Id. The article further notes that it is unclear how temporary transfer of

the arbitration would occur and that it would likely require consent of all parties and

the arbitrators. Id. The article concludes that “[o]n balance, the Amgen approach is

likely the best alternative presented, and Amgen remains the leading case.” Id. at 3

25–26.

• The article also notes that the Amgen case presents a potential jurisdictional issue

regarding enforcement of arbitration subpoenas in federal courts, explaining that the

Fourth Circuit has held that FAA Section 7 provides jurisdiction to the federal court

in the district where the arbitration is located, but the Sixth Circuit had found that the

FAA does not confer an independent basis for jurisdiction and that even the federal

nature of underlying claims submitted to arbitration does not confer federal question

jurisdiction in a suit to confirm an arbitration award. Id. at 26. The article concludes

that “[t]he Fourth and Second Circuits likely have the right [view] of this issue,”

finding that FAA Section 7 clearly confers jurisdiction. Id.

• Leslie Trager, The Use of Subpoenas in Arbitration, 62-JAN DISP. RESOL. J. 14 (2008).

• This article notes a split of authority as to whether FAA § 7 allows nationwide service

of process, explaining that while some earlier cases had approved of nationwide

service of process, “[t]he more recent cases have held that documents can only be

subpoenaed to a hearing at which one or more of the arbitrators are present, even

though this hearing does not need to be on the merits but only on the admissibility of

the documents.” Id. at 16. The article notes that the Eighth Circuit has held that
26

arbitrators have the power to issue subpoenas for documents without holding a

hearing and that there is nationwide jurisdiction to enforce this type ofsubpoena. Id.

(citing In re Security Life Ins. Co. of Am., 228 F.3d 865, 878 (8th Cir. 2000)). In

addition, the article notes that “[t]he 4th Circuit has held that there is nationwide

process in extraordinary circumstances – meaning that the party seeking the subpoena

has shown special need or hardship.” Id. (citing COMSAT Corp. v. Nat’l Sci. Found.,

190 F.3d 269 (4th Cir. 1999)). However, the article notes that the Third Circuit has

held that arbitrators do not have power to issue prehearing document subpoenas, but

did find that “arbitrators could subpoena non-parties to appear before them for a premerit hearing and bring the documents with them to this hearing.” Id. (citing Hay

Group, Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404 (3d Cir. 2004)). The article

also notes that the Hay Group case held that “a document subpoena could be

enforced only so long as the person being subpoenaed was subject to the district

court’s jurisdiction.” Id. at 16–17. The article further notes that the Second Circuit

held, “following Hay Group, that arbitral subpoenas do not have to be made

returnable at a hearing on the merits,” and found that “a subpoena issued under § 7

could be made returnable before the arbitrators at a hearing for document production

and authentication purposes only.” Id. at 17. The article also states that Hay Group’s

holding on the territorial limits of a court in enforcing a subpoena wasfollowed by the

Second Circuit in Dynegy Midstream Services, L.P. v. Trammochem, 451 F.3d 89 (2d

Cir. 2006), which held that “subpoenaed persons must be subject to the enforcing

district court’s jurisdiction.” Id.

• The article concludes that “[t]he better reasoned and more recent cases hold that the

FAA does not authorize nationwide service of subpoenas.” Id. The author proposes

a solution: “To circumvent this issue, we should ask whether the arbitrator could hold

a separate document production hearing in the district where the witness resides and

have the subpoena made returnable to that hearing. If the witness did not appear,

then the party requesting the subpoena could ask the district or state court in that

location to enforce the subpoena and for purposes of § 7 of the FAA, the arbitrators

would be ‘sitting’ in that district.” Id. The author suggests that the American

Arbitration Association consider whether it is necessary to provide for such authority

in the AAA Rules. See id. at 19.

• Mark D. Colley & Laura E. Gasser, Federal, State Laws Govern Arbitration Subpoenas,

Parties Located Elsewhere Must Follow a Myriad of Rules, 11/18/96 NAT’L L.J. D7, (col.

1) (1996).

• “Although the Federal Rules of Civil Procedure implicitly apply [to arbitration

subpoenas], including Rule 45’s provision for attorney-issued subpoenas, the FAA

does not articulate the specific procedures for obtaining enforceable deposition

subpoenas in an arbitration when the witnesses are located outside of the arbitrator’s

jurisdiction.” Id. (footnotes omitted).

• The article discusses the Amgen case, where “the defendant challenged the validity of

the Illinois arbitrators’ subpoena ordering a deponent to appear in Pennsylvania,” and

the court found that “Section VII [of the FAA] does not provide for extraterritorial
 The district court’s holding in Hay Group was later reversed by the Third Circuit. See Hay Group, Inc. v. E.B.S. 4

Acquisition Corp., 360 F.3d 404 (3d Cir. 2004) (holding that the FAA does not give arbitrators authority to issue

document subpoenas to nonparties without summoning the nonparty to appear as a witness).

 The Integrity Insurance Co. holding was later abrogated by the Second Circuit. See note 2, supra.

5

27

service or extraterritorial enforcement.” Id. (citing Amgen, 879 F. Supp. at 883).

“To cure this enforceability problem, the court directed the plaintiff to have an

attorney issue a district court subpoena in the district of the deposition, per Federal

Rule of Civil Procedure 45. That district court subpoena, rather than the arbitrator’s

subpoena, would be enforceable by that district court.” Id.

• Jerold S. Solovy & Robert L. Byman, Arbitration Discovery, 9/8/03 NAT’L L.J. 24, (Col. 1)

(2003).

• This article notes many splits of authority regarding enforcement of arbitration

subpoenas. The article explains that some courts allow a party to subpoena

documents from nonparties prior to the arbitration hearing (In the Matter of the

Arbitration Between Security Life Ins. Co. of Am., 228 F.3d 865, 870 (8th Cir.

2000)); others do not allow such subpoenas except on a showing of special need or

hardship made in a petition to the district court (COMSAT Corp. v. Nat’l Sci. Found.,

190 F.3d 269 (4th Cir. 1999)); and others allow it where the arbitrators find it

appropriate, without the need for a federal court to determine special need (Hay

Group, Inc. v. E.B.S. Acquisition Corp., 2003 U.S. Dist. Lexis 4909 (E.D. Pa.

2003)). The article notes that some courts allow subpoenas for documents, but not 4

depositions (In the Matter of the Arbitration Between Integrity Ins. Co. v. Am.

Centennial Ins. Co., 885 F. Supp. 69, 73 (S.D.N.Y. 1995)); and others find that the 5

“FAA grants the implicit power to compel both testimony and documents prior to

hearing” (Amgen, Inc. v. Kidney Ctr. of Del. County Ltd., 879 F. Supp. 878, 880

(N.D. Ill. 1995)).

• As for enforcement, the article notes that “[a] witness has no obligation to move to

quash an arbitrator-issued subpoena, since the FAA imposes no such requirement.

If the witness simply ignores the subpoena, you have to find a court to enforce it.”

Id. (citing COMSAT, 190 F.3d at 276).

Use of Subpoenas After Discovery Deadline

• Randolph Stuart Sergent, Federal Document Subpoenas and Discovery Deadlines, 34-OCT

MD. B.J. 54 (2001).

• This article notes that there is a divergence of views as to whether document

subpoenas may be used to obtain documents from third-parties after the discovery

deadline has passed, but finds that “the most recent decisions show an emerging

consensus in favor of the most restrictive approach. This approach, which will be

called the ‘majority rule,’ consists largely of cases decided since 1995, limits the use

of pre-trial document subpoenasto the discovery period, and only allows documents

to be sought by means of a trial subpoena where a ‘non-discovery’ purpose can be
28

articulated for those documents. In contrast, a few cases have adopted a ‘minority

rule,’ and have held that a subpoena for documents from a third-party is not covered

by the discovery deadlines.” Id. at 54.

• Subpoena Duces Tecum – Nonparties – Discovery, 18 NO. 3 FED. LITIGATOR 65 (2003).

• This article discusses Mortgage Information Services, Inc. v. Kitchens, 210 F.R.D.

562 (W.D.N.C. 2003), which held that “[a] Rule 45 subpoena duces tecum may be

used to obtain documents from parties as well as nonparties,” and that “a document

subpoena is a discovery device and is subject to discovery deadlines.” 18 NO. 3 FED.

LITIGATOR at 65. The court in Mortgage Information Services noted that Rule 45

does not expressly limit the use of subpoenas to nonparties and that subjecting Rule

45 subpoenasto discovery deadlines follows “from Rule 26’s inclusion of subpoenas

in its definition of discovery.” Id.

• The article notes that “Rule 45 subpoenas are sometimes viewed as limited to

nonparties. Generally, however, they are considered a proper means of requesting

documents from parties as well as nonparties.” Id. (internal citations omitted).

• “There are also differing views as to whether document subpoenas constitute

discoveryand are subject to discovery deadlines. Some courts say no. Most say yes.”

Id. at 66 (internal citations omitted).

• “Depending on the purpose for seeking documents, a Rule 45 subpoena may be a way

of obtaining documents even after the discovery cut-off date. Where copies of

documents were produced during discovery, the originals may be subpoenaed to

ensure their availability at trial. A trial subpoena may also be used to obtain

documents to be used at trial for memory refreshment.” Id. (internal citation

omitted).

• Subpoenas – Discovery Deadline, 11 NO. 5 FED. LITIGATOR 117 (1996).

• This article discusses Rice v. United States, 164 F.R.D. 556 (N.D. Okla. 1995), where

“[e]xpiration of the deadline for discovery precluded issuance of a subpoena duces

tecum to obtain documents from a nonparty.” 11 NO. 5 FED. LITIGATOR at 117.

• In the “Litigation Tips” section, the article states: “Rice does not mean that a

subpoena can never issue to obtain information after a discovery deadline has expired.

Whether a subpoena can issue will depend on the intended application of the

discovery deadline. If the deadline is not intended to shut off all attempts to obtain

information, it is possible that a subpoena may properly issue after the deadline has

passed. If, however, as was the case here, the deadline is intended to bring an end to

all attempts at obtaining information, it will apply to post-deadline subpoenas, at least

if the subpoenaed documents were available during the discovery period.” Id. at 118

(internal citations omitted).

• Subpoena Duces Tecum – Discovery Deadline, 13 NO. 7 FED. LITIGATOR 194 (1998).

• This article discusses Marvin Lumber & Cedar Co. v. PPG Industries, Inc., 117

F.R.D. 443 (D. Minn. 1997), which held that “[a] Rule 45 subpoena duces tecum

directed to a nonparty is subject to a scheduling order discovery deadline.” 13 NO.
29

7 FED. LITIGATOR at 194. The court held that formal discovery after the discovery

deadline would detract from post-discovery case preparation and that the burden and

cost of monitoring an opposing party’s use of subpoenas can be high. Id.

• The article notes: “Not all courts look at the use of subpoenas this way. Some do not

consider discovery deadlines to apply to subpoenas duces tecum directed to

nonparties. In these jurisdictions subpoenas can be issued even after the deadline has

passed. Post-deadline issuance may also be possible if the deadline applies to other

forms of discovery but not specifically to subpoenas.” Id. (internal citation omitted).

“The more typical view is Marvin’s: discovery deadlines apply to attempts to obtain

information from nonparties by subpoena, therefore subpoenas cannot be used to

circumvent discovery deadlines.” Id. “Any subpoena issued before the discovery

deadline with a return date prior to the deadline’s expiration is timely, even if the

return does not actually occur until after the deadline due to delay resulting from an

attempt to have the subpoena quashed.” Id. at 195.

• Don Zupanec, Subpoena – Parties – Discovery Deadline, 23 NO. 5 FED. LITIGATOR 11

(2008).

• This article discusses Thomas v. IEM, Inc., No. 06-886-B-M2, 2008 WL 695230

(M.D. La. Mar. 12, 2008), which held that “[a] Rule 45 subpoena may not be used

to avoid the deadline for party discovery.” 23 NO. 5 FED.LITIGATOR 11. In Thomas,

the plaintiff served the defendant with a subpoena for documents and requested

production within 15 daysso that production would be within the discovery deadline.

Id. The court denied a motion to compel, agreeing with the defendant that subpoenas

are generally used to obtain discovery from nonparties, that the preferred means of

obtaining documents available from parties is Rule 34, and that “[h]owever used,

subpoenas are clearly not meant ‘to provide an end-run around the regular discovery

process under Rule[s] 26 and 34.’” Id. (citing Burns v. Bank of Am., No. 03 Civ.

1685 (RMB)(JCF), 2007 WL 1589437 (S.D.N.Y. June 4, 2007)).

• The “Litigation Tips” section of the article explains: “Nothing in the Federal Rules

explicitly precludes use of Rule 45 subpoenas to obtain documents from parties.

While courts sometimes limit subpoena use to nonparties, there is a good argument

that document subpoenas can properly be served on parties as well as nonparties.”

Id. (internal citation omitted). A subpoena “must be served early enough to allow a

response before the deadline. If a subpoena served on a party and seeking production

of a document is viewed as functionally analogous to a Rule 34 discovery request,

service must be made at least 30 days before the deadline because this is the time

period for responding to a Rule 34 request.” Id.

• Roger W. Kirst, Filling the Gaps in Federal Rule 45 Procedure for Nonparty Nondeposition

Document Discovery, 205 F.R.D. 638, 645 (2002) (“[C]ases in which counsel attempted to

use a nondeposition subpoena after the discovery deadline show that it may be wise to

specifically state that this is a discovery procedure that cannot be used after the discovery

deadline.”) (citing Grant v. Otis Elevator Co., 199 F.R.D 673 (N.D. Okla. 2001); Alper v.

United States, 190 F.R.D. 281 (D. Mass. 2000); Integra LifeSciences I, Ltd. v. Merck KGaA,
30

190 F.R.D. 556 (S.D. Cal. 1999)).

Court’s Authority to Transfer Motions to Quash or Compel

• Victoria E. Brieant, Techniques and Potential Conflicts in the Handling of Depositions (Part

1), 19 NO. 6 PRAC. LITIGATOR 27 (2008).

• “The issuing court may transfer the motion to quash a subpoena to the trial court only

when the non-party consentsto transfer. The FederalRules ofCivil Procedure do not

confer authority on a federal district court to transfer a motion to quash a subpoena

issued from that court where the non-party has not consented to the transfer. In re

Sealed Case, 141 F.3d 337 (D.C. Cir. 1998). Indeed, no rule of civil procedure

authorizes a transferee court to ‘enforce or modify’ a subpoena issuing from a sister

court.” Id. at 46–47. The article explains that “[a]ny controversies regarding

discovery ‘from nonparty witnesses shall be decided in the court which issued the

subpoena, unless the nonparty consents to determination elsewhere.’” Id. at 47

(quoting Highland Tank &Mfg. Co. v. PS Int’l, Inc., 227 F.R.D. 374, 381 (W.D. Pa.

2005)).

• “The language of Rule 45 strongly suggests that only the issuing court has the power

to act on its subpoenas.” Id. at 47 (citing Byrnes v. Jetnet Corp., 111 F.R.D. 68, 69

(M.D.N.C. 1986)).

• However, the article notesthat if the motion isfiled in the presiding court, rather than

in the court that issued the subpoena, the presiding court may hear the motion in

certain circumstances: “In contrast, in Static Control Components, Inc. v. Darkprint

Imaging, 201 F.R.D. 431 (M.D.N.C. 2001), the plaintiff subpoenaed the defendant’s

trial counsel in the case. The non-party lawyers did not move to quash in the issuing

court, but instead the defendants moved to quash in the presiding court. Over the

objection of the plaintiff, who wanted to litigate the subpoena it issued in the issuing

court, the presiding court ruled that it could resolve the issue because it had

jurisdiction over the defendants, who made the motion to quash, and over the

subpoenaed attorneys, who were admitted to the court pro hac vice in the underlying

case.” Id.

• “Even where the non-party consents to a transfer, the issuing court possesses

unfettered discretion to deny the motion to transfer.” Id. (citing United States v. Star

Scientific, Inc., 205 F. Supp. 2d 482, 485 n.3 (D. Md. 2002)).

• “District courts would much prefer to have the trial judge, who has more complete

knowledge of the underlying case, decide whether the non-party discovery sought

should proceed. Whether this is done by transfer or request for an advisory opinion,

you should be prepared to present your positions with two courts in mind: the nonparty’s home court and the trial court.” Id. at 48. 

• The article also notes that “it is axiomatic that the duty to minimize the burden

imposed on a non-party under FED. R. CIV. P. 45(c)(1) requires a party to seek

discovery materials from other parties in the litigation before seeking those materials

from a non-party.” Id. at 46 (citations omitted).
31

• Subpoena – Motion to Compel – Transfer, 17 NO. 8 FED. LITIGATOR 203 (2002).

• This article discusses the holding of United States v. Star Scientific, Inc., 205 F.

Supp. 2d 482 (D. Md. 2002), which held that “[a] district court issuing a discovery

subpoena may transfer a motion to enforce the subpoena to the court where the

underlying action is pending.” 17 No. 8 Fed. Litigator at 203. The court relied at

least in part on the fact that the nonparty preferred to have the court where the case

was pending decide the motion and on comity concerns. Id. at 204.

• In the “Litigation Tips” section, the article notes: “Some courts recognize that

nonparty discovery disputes may be transferred from the court where a subpoena

issues to the court where an action is pending. Where thisisthe case, a nonparty who

prefers raising objections to discovery in the court where the litigation is underway

may simply move to transfer.” Id. (internal citations omitted). “Some courts,

however, reject transfer of nonparty discovery disputes.” Id. “A nonparty preferring

that court [where the case is pending] to decide [subpoena disputes] should move for

a protective order in the issuing court and request a stay pending the filing of a similar

motion in the court where the action in underway. A ruling by the latter court can be

filed in the first court, which then issues its own consistent ruling.” Id. (citation

omitted). “Another possibility, albeit more cumbersome, isto move the issuing court

to request that the judge presiding over the underlying litigation be temporarily

assigned to the district where the issuing court is located for the limited purpose of

deciding the dispute.” Id. (citing 28 U.S.C.A. § 292(d)).

• Subpoena – Motion to Quash – Transfer, 13 NO. 6 FED. LITIGATOR 167 (1998).

• This article discusses In re Sealed Case, 141 F.3d 337 (D.C. Cir. 1998), which held

that “[a] district court from which a subpoena has issued does not have authority to

transfer a motion to quash to the district where the underlying action is pending.” 13

NO. 6 FED. LITIGATOR at 167. The court found no authority in Rule 45 authorizing

transfer, and that the direction in 45(c)(3)(A)(ii) to the issuing court to quash or

modify a subpoena requiring a party to travel more than 100 miles would be

inconsistent with a rule that would allow the issuing court to transfer the motion to

quash to another district. Id. The court concluded that it could be true that “the

court where an action is pending will be better able to handle discovery disputes,” but

concluded that “the rules clearly sacrifice some efficiency in order to provide

territorial protection for nonparties.” Id. The court also rejected the lower court’s

reliance on the advisory committee note to Rule 26, which states that “‘[t]he court in

the district where the deposition is being taken may, and frequently will, remit the

deponent or party to the court where the action is pending.’” Id. at 167–68.

• The “Litigation Tips” section of the article states: “The argument that the Advisory

Committee Note implies transfer authority is not entirely far-fetched. In fact, some

courts have suggested that the Note implies authority to transfer discovery disputes

involving non-parties, including motionsto quash subpoenas. But nothing in Rule 45

either directly or indirectly authorizes transfer. Hence the conclusion that a motion

to quash must be decided by the court from which the subpoena issued.” Id. at 168

(internal citations omitted).
32

• Don Zupanec, Subpoena – Motion to Quash – Transfer, 22 NO. 2FED.LITIGATOR 12 (2007).

• This article discusses WM High Yield v. O’Hanlon, 460 F. Supp. 2d 891 (S.D. Ind.

2006), which held that “[m]otions to quash subpoenas duces tecum issued in

connection with litigation pending in a different district should not be transferred to

that district for decision.” 22 NO. 2 FED. LITIGATOR 12.

• In the “Litigation Tips” section, the article states: “Whether the district court that

issued a nonparty discovery subpoena must rule on a motion to quash or compel

compliance, or, when the underlying litigation is pending in a different district, may

transfer the motion is unclear. There is a good reason for transfer: the transferee

court’s familiarity with the litigation, which the issuing court presumably lacks. But

nothing in Rule 45 authorizes transfer. Just the opposite in fact. Rule 45(c)(3)(A)

states that the court with power to quash or modify a subpoena is ‘the court by which

a subpoena was issued.’ Rule 45(c)(2)(B) allows enforcement of a subpoena

following objections ‘pursuant to an order of the court by which the subpoena was

issued.’ Rule 45(e) provides that failure to obey a subpoena may be deemed contempt

‘of the court from which the subpoena issued.’

Nevertheless, a transfer request is not necessarily doomed. If the subpoenaed

nonparty or the party serving the subpoena can make a convincing argument to the

issuing court that the court presiding over the underlying litigation is in a better

position to decide whether to enforce or quash the subpoena, the issuing court may

be receptive to a transfer request.

Some courts categorically reject transfer of nonparty discovery disputes as lacking

authority under Rule 45. So there is no assurance that even a strong argument for

transfer will get very far.

A decision by the court where the underlying litigation is underway becomes a better

possibility where, in response to a discovery subpoena, a nonparty moves for a

protective order.”

Id. (internal citations omitted). The article notes that “[a]nother way of obtaining a

decision on a subpoena by the court where an action is underway is to move for a

protective order in the issuing court and request a stay pending the filing of a similar

motion in the court overseeing the action. A decision by this court can be filed in the

issuing court, which then issues a consistent decision.” Id. (citation omitted).

• Alan R. Friedman & Stephen M. Sinaiko, When a Non-Party Moves to Challenge Discovery

Subpoena, 7/20/98 N.Y. L.J. S4, (col. 3) (1998).

• This article notes a circuit split regarding whether a court may transfer a motion to

quash to the district where the underlying action is pending. The article notes that the

Seventh, Eighth, and Tenth Circuits, and a number of district courts, have allowed

such transfers, but the D.C. Circuit has not. Id. The article discusses the D.C.
33

Circuit’s decision in In re Sealed Case, 141 F.3d 337 (D.C. Cir. Apr. 14, 1998)).

• The article argues that not allowing transfer resultsin inefficiencies because the judge

in the district from which the subpoena issued sees only a small slice of the case, and

because piecemeal resolution of discovery disputesinvolves many judges, rather than

one, and may result in inconsistent discovery decisions in a single case. 7/20/98 N.Y.

L.J. S4.

• The article notes that courts allowing transfers usually rely on the Advisory

Committee Notes to Rule 26(c), which state that “[t]he court in the district where the

deposition is being taken may, and frequently will, remit the deponent or party to the

court where the action is pending.” Id. The article explains that In re Sealed Case

rejected reliance on that Note, and was concerned that transfer could force nonparties

to litigate motions to compel before courts lacking jurisdiction over them. Id.

• The article asserts that In re Sealed reached the wrong decision, arguing that there are

other contexts in which parties litigate rights before courts that do not have personal

jurisdiction over them; that given that parties have the option to bring a motion for

protective order in the court where the action is pending, it makes little sense to not

allow transfers of motions to quash; that disallowing transfer is wasteful of judicial

resources; and that disallowing transfer encourages forum shopping for discovery

practice. Id.

Expert Issues

• George James Bagnall, Comment, Notes of the 1991 Advisory Committee for the Amendment

of Federal Rules of Civil Procedure 45: Is the Compulsion to Testify of an Unretained

Expert Witness a Taking?, 83 OR. L. REV. 763, 793 (2004) (“The discretionary language of

Rule 45(c)(3)(B)(ii) should be modified from may to shall to match that of Rule 45(c)(3)(A).

As the advisory committee’s notes to the 1991 amendment of Rule 45 suggest, forcing an

expert to testify amounts to a taking of his property.”).

• Don Zupanec, Subpoena – Unretained Expert – Factual Information – Past Opinion, 19 NO.

3 FED. LITIGATOR 11 (2004).

• This article discusses Statutory Committee of Unsecured Creditors v. Motorola, Inc.,

218 F.R.D. 325 (D.D.C. 2003), which held that “F.R.C.P. 45(c)(3)(B)(ii)’s protection

for unretained experts applies to subpoenas seeking factual information and past

opinions from such persons.” The article explains that “[a]ssuming the expert is able

to show that the material does not describe ‘specific events or occurrences in dispute’

and is not the result of research undertaken at the request of a party to the litigation

(see Rule 45(c)(3)(B)(ii)), the burden is on the subpoenaing party to establish a

substantial need, the material’s unavailability from other sources without undue

hardship, and, importantly, that the expert will be ‘reasonably compensated’ for

producing it (see Rule 45(c)(3)(B)(iii)).” Id. The article discussesthe factors relevant

to making this showing.

• Deposition Costs – Treating Physicians, 13 NO. 6 FED. LITIGATOR 171 (1998) (discussing

Fisher v. Ford Motor Co., 178 F.R.D. 195 (N.D. Ohio 1998), which held that treating
 Other courts have disagreed with this holding. See, e.g., Wirtz v. Kan. Farm Bureau Servs., Inc., 355 F. Supp. 2d 6

1190, 1211 (D. Kan. 2005) (“To be certain, a number of courts have held that a treating physician testifying solely to

his or her treatment of the patient is not entitled to anything above the fact witness fee. However, a more common view

is that a treating physician responding to discovery requests and testifying at trial is entitled to his or her ‘reasonable

fee’ because such physician’s testimony will necessarily involve scientific knowledge and observations that do not

inform the testimony of a simple ‘fact’ or ‘occurrence’ witness.”) (footnotes omitted); Coleman v. Dydula, 190 F.R.D.

320, 323 (W.D.N.Y. 1999) (noting a split of authority, and determining that treating physicians were entitled to a

“reasonable” fee for their deposition testimony, rather than the statutory rate).

34

physicians who are subpoenaed under Rule 45 are entitled to the statutory rate of

compensation as fact witnesses, not as expert witnesses).6

• Gregory P. Joseph, Assessing Federal Rule 45, 12/28/92 NAT’L L.J. 23, (col. 1) (1992).

• “The extent to which a Rule 45 document subpoena may be used to obtain an adverse

expert’s files is not entirely certain. In a recent case, the U.S. District Court for the

Western District of Virginia held that Rule 45 cannot be used to obtain an opposing

expert’s files because Rule 26(b)(4) now limits expert discovery to interrogatories,

and that limitation evinces a policy judgment that expert disclosure is otherwise off

limits.” Id. (citing Marsh v. Jackson, 141 F.R.D. 431 (W.D. Va. 1992)). However,

this was before the 1993 amendments to Rule 26 regarding expert disclosures: “One

might query whether that analysis [in Marsh] will retain vitality if the pending

amendments to Rule 26 are adopted. Under proposed Rule 26(a)(3), which has been

approved by the Judicial Conference, expert discovery in the future will include

extraordinarily detailed expert reports and depositions as of right. That would appear

to evince a different policy judgment – one that might be compatible with future use

of Rule 45 document subpoenas to obtain adverse experts’ files.” Id.

Trade Secrets/Confidential Information

• Curtis Scribner, Note, Subpoena to Google Inc. in ACLU v. Gonzales: “Big Brother” Is

Watching Your Internet Searches Through Government Subpoenas, 75 U.CIN.L.REV. 1273

(2007).

• This article isfocused on problems created by subpoenas for requests for information

revealed on the internet, but most of the issuesraised do not necessarily relate to Rule

45. However, with respect to trade secret protection, the article notes that “[t]he

language of FRCP 45 states that the court ‘shall’ modify or quash a subpoena if it

creates an undue burden. On the other hand if the subpoena requires exposure of a

trade secret, the court ‘may’ modify or quash a subpoena. Obviously, the Rule’s use

of the language ‘may’ gives the court discretion when deciding upon a subpoena

which endangers trade secrets.” Id. at 1283.

• Don Zupanec, Subpoena – Confidential Information – Reasonable Compensation, 20 NO.

11 FED. LITIGATOR 11 (2005).

• This article discusses Klay v. All Defendants, 425 F.3d 977 (11th Cir. 2005), which

held that “[w]hether a subpoenaed party is entitled to reasonable compensation for
35

disclosure of confidential information, and the amount of compensation, if any,

depend on whether disclosure causes a lossto the party.” 20 NO. 11 FED. LITIGATOR

11. The court noted that “Rule 45(c)(3)(B) protects subpoenaed parties from

unnecessary expense in responding to a subpoena, and also from ‘unnecessary or

unduly harmful disclosures of confidential information.’” Id. (quoting FED. R. CIV.

P. 45 Advisory Committee Notes (1991 amendments)). “The Eleventh Circuit said

that Rule 45(c)(3)(B) requires reasonable compensation for compelled use of

confidential intellectual property.” Id. (citing FED. R. CIV. P. 45(c)(3)(B)(ii)). “The

Eleventh Circuit said that compensation is required only when disclosure of

confidential intellectual property or other confidential information causes ‘actual

property loss’ to a subpoenaed party. The amount of compensation is measured by

loss to the subpoenaed party from disclosure of the information, not by any gain to

the subpoenaing party from obtaining the information. If disclosure causes no loss,

the amount of compensation reasonably owed is zero. If loss is substantial, the

amount of compensation will be, too, even if gain to the subpoenaing party is slight.”

Id.

• In the “Litigation Tips” section, the article states: “This decision recognizes that under

Rule 45(c)(3)(B)(i), (iii), the compensation requirement extends to compelled

disclosure of intellectual property and confidential information by other than

unretained experts. Assuming the subpoenaing party makes the threshold showing,

it is up to the subpoenaed party to establish a basis for compensation and the amount

of compensation that is reasonable. Under the approach adopted here – which is

analogousto the method of determining ‘just compensation’ for the compelled taking

of nonrivalrous real property – the subpoenaed party must (1) demonstrate that

disclosure will result in a loss, and (2) quantify the loss. Compensation is not

automatic.” Id.

• Don Zupanec, Subpoena – Copying Computer Hard Drives – Trade Secrets, 23 NO. 9 FED.

LITIGATOR 9 (2008).

• This article discusses Daimler Truck North America LLC v. Younessi, No. 08-MC5011RBL, 2008 WL 2519845 (W.D. Wash. June 20, 2008), which found that “[t]he

presence of trade secrets or similar proprietary information on computer hard drives

supports quashing a subpoena for copying the drives.” 23 NO. 9 FED. LITIGATOR 9.

The court found that discovery was warranted, but that a protective order was

appropriate to allow the producing party to search for relevant documents that would

not disclose trade secrets, rather than requiring production of the full hard drives. See

id.

• The article notes that while nonparties subject to subpoenas are not required to

produce electronically stored informationthat is not reasonably accessible, sometimes

information may be reasonably accessible but still place an undue burden on the

subpoenaed party. The article explains: “Addition of Rule 45(d)(1)(D) expanded the

possible protective responses to nonparty subpoenas for electronically stored

information. But the Rule’s ‘not reasonably accessible’ requirement limits its

applicability. Other responses, not specific to requests for ESI, may provide a better
36

chance of resisting a subpoena.” Id.

• Gregory P. Joseph, Assessing Federal Rule 45, 12/28/92 NAT’L L.J. 23, (col. 1) (1992).

• “Rule 45(c)[(3)](B)(i) authorizes, but does not require, the court to protect a person

whose trade secrets or other proprietary information have been subpoenaed. Two

recent cases . . . conclude that once the competitive sensitivity of the information has

been demonstrated, the burden shiftsto the party issuing the subpoena to demonstrate

a need for the information that is greater than the harm caused by its disclosure.” Id.

(citing Stanley Works v. Newell Co., No. 92 C 20157, 1992 WL 229652 (N.D. Ill.

Aug. 27, 1992); Westinghouse Elec. Corp. v. Carolina Power & Light Co., Civ. A.

No. 91-4288, 1992 WL 300796 (E.D. La. Sept. 22, 1992)).

Requirement to Meet and Confer

• Certification Requirement – Nonparty Discovery – Applicability, 18 NO. 2 FED. LITIGATOR

42 (2003).

• This article discusses Medical Components, Inc. v. Classic Medical, Inc., 210 F.R.D.

175 (M.D.N.C. 2002), which found that “a local rule requiring that a motion to

compel discovery be accompanied by an attestation that an attempt was made to

resolve the dispute informally applies to discoveryfromnonparties as well as parties.”

18 NO. 2 FED. LITIGATOR at 42.

• “A mandatory attempt to settle discovery disputesinformally before requesting court

intervention is implicit, the court said, in Rule 45(c)’s requirement that subpoenaing

parties take ‘reasonable steps to avoid imposing undue burden or expense’ on

nonparties served with discovery subpoenas.” Id. at 43.

• In the “Litigation Tips” section, the article notes: “Many districts have local rules

comparable to M.D.N.C. Local R. 26.1(c). While they may not explicitly require a

movant to certify that an effort was made to resolve a discovery dispute with

nonparties, their applicability to Rule 45 discovery should be assumed. In some

districts, the certification requirement explicitly applies to all discovery, including

discovery from nonparties.” Id.

• Sedona Commentary, supra.

• “[C]ourts have not resolved such questions as whether the party and non-party must

meet and attempt to resolve disputes prior to proceeding to court for a motion to

compel or motion to quash. Nothing in Rule 45 requires such a conference. Nor

does anything in Rule 45 require the parties to confer with each other or with the

nonparty prior to serving a subpoena. Furthermore, courts have not addressed the

question of whether cost shifting would be allowed for the costs imposed on the nonparty during the preservation process.” Id. at 200 (footnotes omitted).

• Under suggested Best Practices, the Sedona Commentary states: “While the Federal

Rules do not require that the parties ‘meet and confer’ with the non-party recipients

of a subpoena, local rules or judges’ personal rules may contain broad requirements

encompassing all parties – even non-party recipients of subpoenas. Even in the

absence of such a requirement, prior to issuing a subpoena to a non-party, the issuing
37

party should, when feasible, contact the non-party to discuss burden, form of

production, cost, retention of important information, scope, and duration of a

litigation hold. This is particularly important if the party and the non-party have a

preexisting business relationship.” Id. at 201.

• Another suggested Best Practice is that “[w]henever possible, parties and non-parties

should consider stipulating to extend the 14 days in Rule 45(c)(2)(B) for the nonparty to serve an objection to facilitate and allow meaningful dialogue.” Id.

• Another suggested Best Practice is: “[I]f the parties anticipate serving non-party

subpoenas that may callfor production of privileged ESI, the parties should address,

as part of the Rule 26(f) conference, a reasonable timetable for a party to assert a Rule

45(d)(2)(B) objection. In the absence ofsuch an agreement, the reasonableness of the

timing of any such objection will likely simply be another matter for dispute.” Id. at

202.

Privilege Claims and Privilege Logs

• Thomas M. Cunningham, Impact the Discretion of the Court, Examining Privilege Log

Descriptions in Federal Litigation, 46 No. 10 DRI FOR DEF. 51 (2004).

• “Persons responding to a subpoena duces tecum must act more quickly in asserting

the person’s claim of privilege on a privilege log. Under Federal Rule 45(c)(2)(B),

a person commanded to produce and permit inspection of documents must comply

within 14 days after service of the subpoena, or before the time specified for

compliance if such time is less than 14 days after service of the subpoena.

Alternatively, the responding person must serve any written objections to the

subpoena within that time. The text of the rule expressly conditionsthe service of an

objection to a subpoena duces tecum upon compliance with the rule requiring express

claims of privilege. FED. R. CIV. P. 45(c)(2)(B). In other words, a person objecting

to compliance with a subpoena duces tecum on grounds of privilege must produce a

privilege log at or within the time the person serves objections to the subpoena under

the literal terms of the rules.

Some courts have characterized the language of Rule 45(d)(2) as unclear as to when

the privilege log must be produced, e.g., Goodyear Tire &RubberCompany v. Kirk’s

Tire & Auto Servicenter of Haverstraw, Inc., 211 F.R.D. 658, 661 (D. Kan. 2003)

(citing cases). Some courts have permitted a subpoenaed non-party to produce the

information requested byRule 45(d)(2) after filing objections under Rule 45(c)(2)(B)

or a motion to quash, e.g., Minnesota Sch. Bds. Ass’n Ins. Trust v. Employers Ins.

Co. of Wausau, 183 F.R.D. 627, 629 (N.D. Ill. 1999). Several circuits hold that a full

privilege log under Rule 45(d)(2) will be considered timely if provided within a

‘reasonable time’ as long as objections are asserted within the 14-day time frame,

including an objection on the grounds that certain specified documents will be

withheld on the basis of an articulated privilege. In re DG Acquisition Corp., 151

F.3d 75, 81 (2d Cir. 1998); Tuite v. Henry, 98 F.3d 1411, 1416 (D.C. Cir. 1996).”

Id.
38

• Subpoena – Privilege Objection – Timeliness, 12 NO. 3 FED. LITIGATOR 78 (1997).

• This article discusses Tuite v. Henry, 98 F.3d 1411 (D.C. Cir. 1996), which held that

“[t]o raise a privilege objection to a subpoena requiring production of documents, a

written objection stating the claim of privilege must be made within 14 days after the

subpoena is served,” but that a privilege log can be served within a reasonable time.

12 NO. 3FED.LITIGATOR at 78. The Tuite court held that “Rule 45(c)(2)(B)’s 14-day

requirement applies to both the objection itself and the privilege claim.” Id. at 79. “In

the court’s view, Rule 45(c)(2)(B)’s ‘subject to’ language does not relieve the

objecting party from asserting the privilege claim within 14 days of being served. The

language, it said, merely clarifies the type of information that eventually must be

provided to support a privilege claim.” Id. While the claim of privilege must be made

within 14 days, a privilege log can be provided within a “reasonable time,” which “will

depend on the amount of time the subpoenaed party needs to evaluate the documents

fully, and the amount of time the subpoenaing party needs to contest the claim if it

chooses to do so.” Id.

• In the “Litigation Tips” section, the article notes: “It is possible to interpret Rule

45(c)(2)(B) and 45(d)(2) as permitting a privilege objection to be delayed until the

deadline for complying with the subpoena. The prudent procedure, though, is the one

described here: assert the privilege claim at the same time objection is made to the

subpoena. Do this within 14 days of the date the subpoena is served, or before the

time for complying with the subpoena, if this is less than 14 days after service.” Id.

• Subpoena – Privilege Objection – Timeliness, 13 NO. 11 FED. LITIGATOR 309 (1998).

• This article discusses In re DG Corp., 151 F.3d 75 (2d Cir. 1998), where it was held

that “[a] privilege objection to a subpoena requiring production of documents must

be made within 14 days after the subpoena is served,” but that when a constitutional

privilege isinvolved, such asthe 5th Amendment privilege against self-incrimination,

the court has discretion in determining whether later assertion constitutes a waiver.

13 NO. 11 FED. LITIGATOR at 309.

• The article summarizes the law in the “LitigationTips” section: “One, privilege claims

should be asserted at the same time objection is made to a subpoena calling for

production of documents. Written objection should be made, and the privilege claim

asserted, within 14 days after the subpoena is served, or before the time specified for

compliance, if less than 14 days after service. It’s not necessary to provide a privilege

log at the time the objection is made. The log may be furnished after the subpoenaed

documents have been examined and a determination is made regarding which ones are

privileged, as long as this is done within a reasonable time.” Id. at 310.

• In Camera Inspection of Documents Claimed To Be Privileged Requires No Showing of

Need, 15 NO. 4 FED. LITIGATOR 89 (2000).

• This article discusses Avery Dennison Corp. v. Four Pillars, 190 F.R.D. 1 (D.D.C.

1999), where parties served with a subpoena duces tecum objected on privilege

grounds, did not produce a privilege log, and then refused to produce the documents

for in camera inspection by the magistrate judge, arguing that the subpoenaed party
39

had not made a showing of need for the documents. 15 NO. 4 FED. LITIGATOR at 89.

The magistrate judge held: “To require the party seeking enforcement to prove need

before the court is even permitted to order the material produced for in camera

inspection would . . . add to Rule 45 a requirement it does not contain.” Id. at 90.

Timeliness of Motion to Quash

• Privilege Against Disclosing Subpoenaed Data Is Waived When Documents Are Furnished

for Inspection Even If No Copies Made, 36 NO. 8 GOV’T CONTRACTOR P 120 (1994).

• This article discusses Tutor-Saliba Corp. v. U.S., 30 Fed. Cl. 155 (1993), which

evaluated the timeliness of a motion to quash under Court of Federal Claims Rule 45,

which was similar to Federal Rule 45. The court found that “(a) its Rule 45(c)(2)(B)

states that a person ordered to produce and permit inspection and copying may file

a written objection to that order within 14 days after service of the subpoena, and (b)

Rule 45(c)(3)(A) states that a subpoena requiring disclosure of privileged material

shall be quashed in response to a ‘timely motion.’” 36 NO. 8 GOV’T CONTRACTOR

P 120. “Reading these two rules together, the Court holds that requests to quash a

subpoena must be filed within the specified 14-day period. Because the

subcontractor’s request did not meet this requirement, it must be denied as untimely.”

Id.

• The article notes that the “timely motion” language in the Court of Federal Claims

Rule 45(c)(3) was adopted shortly after a similar modification went into effect in

Federal Rule 45 in 1991. “In view of the recent nature of the change [in FED. R. CIV.

P. 45], there have not yet been many decisions interpreting it. Of these few, one that

takes a position similar to that of the Court in Tutor-Saliba is In re Ecam

Publications, Inc., . . . 131 [B.R.] 556 (Bankr. S.D.N.Y. 1991). But compare

Winchester Capital Management Co. v. Manufacturers Hanover Trust Co., 144

F.R.D. 170 (D. Mass. 1992), ruling that a claim of attorney-client privilege may be

asserted at the time for compliance with a subpoena, even if that time is more than 14

days after the subpoena was served.” Id.

Waiver of Objections

• Don Zupanec, Subpoena – Motion to Quash – 100-Mile Rule – Waiver, 21 NO. 11 FED.

LITIGATOR 9 (2006).

• This article discusses Estate of Ungar v. Palestinian Authority, 451 F. Supp. 2d 607

(2006), where the court found that “[f]ailing to raise F.R.C.P. 45(c)(3)(A)(ii)’s 100-

mile rule in a timely motion to quash a subpoena does not waive asserting it as a

defense with the subpoena.” 21 NO. 11 FED.LITIGATOR 9. In Ungar, the subpoenaed

witnesses timely moved to quash, but did not raise their 100-mile rule objection until

after the return date. “Because no timely motion raising violation of the [100-mile]

rule had been made, the court was not bound by Rule 45(c)(3)(A)’s requirement that

the subpoenas be quashed or modified. In the court’s view, the appropriate action

was nevertheless to order their modification – but not entirely eliminate the

testimonial aspect.” Id.

• In the “Litigation Tips” section, the article states: “Failing to object on a timely basis,
40

or omitting groundsfrom an objection, ordinarily operates as a waiver.” Id. (citation

omitted). “There are two possible exceptions to the waiver rule. One applies where

circumstances are unusual and good cause exists for failing to make a timely

objection. This is generally limited to the following circumstances: (1) a subpoena is

overbroad on its face; (2) the person subpoenaed is a nonparty acting in good faith;

or (3) counsel for the person subpoenaed and counsel for the party serving the

subpoena were in contact concerning compliance with the subpoena prior to the time

objection was made.

The other exception applies to privilege objections. Failing to object on the basis of

privilege before Rule 45(c)(2)(B)’s 14-day deadline does not result in waiver, as long

as objection is made within a ‘reasonable period.’ This is a narrowly recognized

exception.”

Id. (internal citations omitted).

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197, 231 (1992) (“It has been held that a post-compliance

application for costs is permissible, at least when the nonparty has reserved, in the course of

the earlier proceedings, the right to make the later application; that to hold otherwise might

very well interrupt the parties’ discovery proceedings by compelling costs motions before

costs can even be reasonably estimated; and that the seeking of costs should therefore not be

restricted to the pre-compliance context of a motion to compel or quash.”) (citation omitted).

Subpoenas to Unnamed Plaintiffs in a Class Action

• Current Decisions Survey, 26 NO. 5 CLASS ACTION REP. 73 (2005).

• This article summarizes In re Publication Paper Antitrust Litigation, No. 3:04 MD

1631(SRU), 2005 WL 1629633 (D. Conn. July5, 2005). The article notes that “[t]he

general rule is that discovery is not permitted fromabsent class members as ‘parties,’”

but that some courts have allowed discovery against absent classmembers under Rule

23(d). The article explains that Rule 45 cannot be used to avoid the limitations of

Rule 23(d): “The source of discovery requested in this case is Rule 45, not Rule 23,

in that the defendants are not seeking []party discovery but third-party discovery

pursuant to subpoena. This procedural difference does not, however, have any

practical effect. Under both Rules, courts are permitted to deny discovery under the

‘undue burden’ standard. Otherwise, proponents could use Rule 45 to avoid the

limitations of Rule 23(d).”

Subpoenas to Government Agencies

• Don Zupanec, Subpoena – “Person” – Federal Government, 21 NO. 1 FED. LITIGATOR 10

(2006).

• This article discusses Robinson v. City of Philadelphia, 233 F.R.D. 169 (E.D. Pa.

2005), which held that “[f]ederal agencies and employees are not ‘persons’ under

F.R.C.P. 45, authorizing subpoenas for discovery from nonparties.” 21 NO. 1 FED.
 The district court’s decision in Yousuf was overruled on appeal. See Yousuf v. Samantar, 451 F.3d 248, 250 (D.C. 7

Cir. 2006) (“[W]e hold the United States is a ‘person’ within the meaning of Rule 45 – as it has been held to be under

every Rule thus far litigated.”).

41

LITIGATOR 10.

• In the “Litigation Tips” section, the article states: “This is the latest in a recent series

of rulings that the federal government and federal agencies are not ‘persons’ within

the meaning of Rule 45(a)(1)(C).” Id. (citing Lerner v. District of Columbia, No.

Civ. A. 00-1590 GK, 2005 WL 2375175 (D.D.C. 2005); United States ex rel. Taylor

v. Gabelli, 233 F.R.D. 174 (D.D.C. 2005); Yousuf v. Samantar, No. MISC. 05-110

(RBW), 2005 WL 1523385 (D.D.C. May 3, 2005) ). However, the article notes that 7

a party is not precluded from seeking discovery from a nonparty government agency

by issuing a subpoena, but because enforcement may be limited under Rule 45, “[t]he

likely means of enforcement, assuming denial was pursuant to an agency regulation,

is an action against the agency under the Administrative Procedures Act (APA).” Id.

(citations omitted). The article notes that “[a] simple motion to enforce may also be

possible.” Id. (citing United States Envtl. Prot. Agency v. Gen. Elec. Co., 197 F.3d

592 (2d Cir. 1999)). “What’s significant is the standard of review under the APA of

an agency’s decision not to respond to a subpoena. The decision will be upheld unless

‘arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with

law.’” Id. (citations omitted).

• Don Zupanec, Appellate Jurisdiction – Judicial Review– Federal Agency Subpoena, 22 NO.

5 FED. LITIGATOR 18 (2007).

• This article discusses Watts v. Securities and Exchange Commission, 482 F.3d 501

(D.C. Cir. 2007), where it was held that “[a] decision by the Securities and Exchange

Commission not to comply with a subpoena issued in a civil lawsuit is not initially

reviewable in an appeals court.”

• In the “Litigation Tips” section, the article explains: “There are two procedures for

obtaining judicial review [of an agency’s decision not to comply with a subpoena]: a

motion to compel under F.R.C.P. 45 or an independent action against the agency

under the APA (see 5 U.S.C.A. 702). In the D.C. Circuit’s view, a motion to compel

is the proper procedure. . . . The D.C. Circuit said that a challenge to an agency’s

refusal to comply with a subpoena may proceed as a Rule 45 motion to compel. The

Second Circuit agrees.” 22 NO. 5 FED. LITIGATOR 18 (citing United States Envtl.

Prot. Agency v. Gen. Elec. Co., 197 F.3d 592 (2d Cir. 1999)). “While the D.C. and

Second Circuits agree on this, they part company with respect to the appropriate

standard of review. The APA requires upholding agency decisions unless they are

arbitrary, capricious, or in excess of the agency’s authority. Under Rule 45, a

subpoena may be quashed if complying would cause an ‘undue burden.’ The Second

Circuit applies the APA’s ‘arbitrary and capricious’ standard. The D.C. Circuit opts

for Rule 45’s ‘undue burden’ standard – but emphasizes that in determining whether

a subpoena is unduly burdensome on an agency, district courts must be particularly
42

sensitive to both the fact that the agency is not a party to the litigation and the effect

that complying with third-party subpoenas will have on its operations.” Id. (internal

citations omitted).

• Don Zupanec, Discovery Subpoenas – “Person” – United States, 21 NO. 7 FED. LITIGATOR

13 (2006).

• This article discussesIn re Vioxx Products Liability Litigation, 235 F.R.D. 334 (E.D.

La. 2006), which held that “[t]he United States is a ‘person’ within the meaning of

F.R.C.P. 45(a)(1)(C), authorizing issuance of discovery subpoenas, even though not

a party to litigation.” 21 NO. 7 FED. LITIGATOR 13. The court concluded that the

presumption that the government is not a person does not apply to Rule 45. Id. The

court noted that the government is considered a “person” when it is a party and that

Rule 45 contains no language distinguishing between when the government is a party

or nonparty, and found that “person” in Rule 45 should include the government. Id.

The court also found that Rule 30(a)(1) “allows taking the testimony of any ‘person’

by deposition,” and that “Rule 30(b)(6) permits naming a government agency as a

deponent in a notice of deposition and a subpoena,” and concluded that “read in

conjunction, these two rules allow deposing a governmental agency, whether a party

or not, and compelling attendance at a deposition by means of a Rule 45 subpoena.”

Id. The court found that “[i]nterpreting ‘person’ as used in Rule 45 to exclude

governmental agencies would conflict with Rule 30.” Id. The court also noted that

“Rule 4(i)(3)(A) refers to federal agencies and corporations as ‘persons required to

be served’ in actions governed by Rule 4(i)(2)(A),” and concluded that “[u]nder a

consistent construction of ‘person’ as used in Rule 45 and ‘persons’ as referred to in

Rule 4(i), federal agencies are persons.” Id.

• In the “Litigation Tips” section, the article states: “As we recently noted . . . , a series

of decisions, principally in the District of Columbia Circuit, have construed the term

‘person’ as used inRule 45(a)(1)(C) not to include the federal government and federal

agencies. The conclusion reached [in Vioxx] – that the United States is a ‘person’ –

treats governmental and nongovernmental entities the same even when the

government or a federal agency is not a party to litigation.” Id.

• “The construction of ‘person’ does not necessarily shortcut the discovery process

when information is sought from a nonparty federal agency. What it does is maintain

the possibility of a motion to compel as a way of enforcing a subpoena. Otherwise,

enforcement presumably requires an action against the agency under the

Administrative Procedures Act, at least where a decision not to comply with a

subpoena is pursuant to agency regulation.” Id.

• Taxpayers Against Fraud Education Fund, Recent False Claims Act & Qui Tam Decisions,

42 FALSE CL. ACT AND QUI TAM Q. REV. 7 (2006).

• This article discusses U.S. ex rel. Pogue v. Diabetes Treatment Centers of America,

Inc., 235 F.R.D. 521 (D.D.C. 2006), in which the “court refused to grant a

defendant’s motion to compel the United States to respond to a subpoena in a nonintervened FCA qui tam action.” 42 FALSE CL. ACT AND QUI TAM Q. REV. 7.
43

“Dissecting the language of Rule 45, the court ruled that the government was not a

‘person’ within the meaning of the rule, for the government was not a real party in

interest when, as in this case, the government had elected not to intervene.” Id.

“[T]he court noted that any dispute that the agency’s response to the subpoena was

not in conformity with its own regulations must be brought under the Administrative

Procedure Act (APA).” Id. (citing 5 U.S.C. §§ 701 et seq.; Yousuf v. Samantar, No.

MISC. 05-110 (RBW), 2005 WL 1523385, at *4 n.10 (D.D.C. 2005)).

• Thomas L. McGovern III, Daniel P. Graham & Stuart B. Nibley, A Level Playing Field: Why

Congress Intended the Boards of Contract Appeals To Have Enforceable Subpoena Power

Over Both Contractors and the Government, 36 PUB. CONT. L.J. 495 (2007).

• “DOJ . . . began to raise and litigate the issue [of whether the United States is a

“person” under Rule 45] and obtained a number of district court rulings that found

that the United States was not a ‘person’ under Rule 45. . . . [T]hese courts based

their rulings on the ‘longstanding interpretative presumption that person does not

include the sovereign.’ Other decisions, however, rejected the Government’s position

and held that the United States is a ‘person’ under Rule 45.” Id. at 504 (footnotes

omitted).

• The article then discusses the case of Yousuf v. Samantar, 451 F.3d 248 (D.C. Cir.

2006), which concluded that Rule 45 does apply to the Government, finding that its

application to the government “would work no ‘obvious absurdity,’” that “‘[t]he

Rules were designed to provide a ‘liberal opportunity for discovery,’’ and that ‘there

is no indication the Government should be exempt from the obligation of a nonparty

to provide its evidence pursuant to subpoena.’” Id. at 505 (footnotes omitted). The

court also “observed that the term ‘person’ in Federal Rules of Civil Procedure 4 and

30 expressly includes the Government and that the term as used in Rules 14, 19, and

24 has been interpreted to include the Government.” Id. at 506 (footnote omitted).

Finally, the court noted that “DOJ has a long history of complying with Rule 45

subpoenas and this was strong evidence of a consistent and longstanding ‘executive

interpretation’ of Rule 45.” Id. “[T]he Yousuf court concluded that ‘the ‘purpose,

the subject matter, the context, [and] the . . . history [of Rule 45] . . . indicate an

intent, by the use of the term [‘person’], to bring [the government] within the scope’

of the Rule.’” Id. (footnote omitted).

• Discovery from Federal Government – Authority of Agency Head To Deny Discovery

Request, 10 NO. 1 FED. LITIGATOR 11 (1995).

• This article discusses Exxon Shipping Co. v. United States Dept. of Interior, 34 F.3d

774 (9th Cir. 1994), which found that “[f]ederal discovery rules apply to requests for

discovery from the federal government, whether the government is a party to the

action or not, and federal agency heads may not conclusively determine whether

government employees may refuse to comply with proper discovery requests.” 10

NO. 1FED.LITIGATOR at 11. The court “expressed confidence, however, in the ability

of district courts to balance the interest in full and complete discovery reflected in the

discovery rules with the government’s interest in ensuring the efficiency of its
44

operations.” Id. at 12. The article notes that the case “provides grounds for arguing

that discovery requests to government officials, when the government is not a party

to the underlying litigation, should not be treated any differently than other discovery

requests.” Id.

• Robert R. Vieth & Tara M. Lee, Can a Third Party Subpoena the Feds? D.C. Circuit

Concludes that an Agency Is a “Person” Under Rule 45, 8/21/2006 LEGAL TIMES 40 (2006).

• This article notes a circuit split as to whether a government agency is required to

comply with a subpoena. The article notes the D.C. Circuit’s decision in Yousuf v.

Samantar that the government is a “person” under Rule 45 and subject to the federal

subpoena power of federal courts, but explains that other circuits have reached

different results. See id. “The 4th Circuit, for example, has stated that ‘when an

agency is not a party to an action, its choice of whether or not to comply with a thirdparty subpoena is essentially a policy decision about the best use of the agency’s

resources. In another case the 3rd Circuit reasoned that the Environmental Protection

Agency ‘did not abuse its discretion or otherwise err in preventing [an agency

employee] from using agency time to give deposition testimony, . . . in private

litigation.’ The 7th Circuit has construed [United States ex rel.] Touhy [v. Ragen,

340 U.S. 462 (1951)] as ‘part of an unbroken chain of authority that supports the

Department’s contention that a federal employee cannot be compelled to obey a

subpoena, even a federal subpoena, that acts against valid agency regulations.’

Although each of these quotations is arguably dicta, a party would be well served to

try to avoid serving a document subpoena in these circuits.” Id.

• The article argues that the government’s argument that it is not subject to federal

subpoenas is flawed for several reasons. The article asserts that “it is not clear that

the APA supplies the applicable waiver of sovereign immunity,” and argues that the

suggestion that refusal to comply with a subpoena is subject only to arbitrary and

capricious review is erroneous because “the APA empowers a court to decree

unlawful agency action that is ‘arbitrary, capricious, an abuse of discretion, or

otherwise not in accordance with law.’” Id. The article notes that “[f]or these and

other reasons, the 9th and D.C. circuits have rejected the government’s traditional

argument and reasoned that the government is subject to a valid federal court

subpoena.” Id. (citing Houston Business Journal, Inc. v. Office of Comptroller of the

Currency, United States Dep’t of Treasury, 86 F.3d 1208 (D.C. Cir. 1996)).

• The article notes that in one case, the D.C. Circuit ruled that the government is not

a “person” under a federalstatute authorizing district courtsto issue subpoenas to any

“person” in connection with foreign judicial proceedings, and that the D.C. Circuit

later stated in Linder v. Calero-Portocarrero, 251 F.3d 178 (D.C. Cir. 2001), “that

although many courts had long ‘assumed’ that the government was subject to a

subpoena, that ‘assumption may need to be re-examined in light of Al-Fayed [v. CIA,

229 F.3d 272 (D.C. Cir. 2000)].’” 8/21/2006 LEGAL TIMES 40. The article notes that

“[b]y January 2006, a number of district judges within the circuit had declined to

enforce subpoenas against federal agencies on the grounds that the government is not

subject to a [Rule 45] subpoena,” but that “[f]or now, at least, Yousuf has put an end
45

to this trend, as the D.C. Circuit rejected the government’s argument that it is not a

‘person’ under [Rule 45].” Id.

• The article argues that the result in Yousuf is correct for several reasons, including

that the government has not previously raised the objection that it is not a “person”

in many decades of practice under the federalrules; that many other civilrules use the

term “person” and have been interpreted to include the government; that “countless

agency regulations recognize that subpoenas may be served on the agencies”; that

there is a need to enforce separation of powers; and that practical reasons support the

decision. Id.

• Civil Procedure – Subpoena Power – Ninth Circuit Rejects Authority of Non-Party Federal

Agencies To Prevent Employees from Testifying Pursuant to a Federal Subpoena – Exxon

Shipping Co. v. United States Dep’t of Interior, 34 F.3d 774 (9th Cir. 1994), 108 HARV. L.

REV. 965 (1995).

• This article discusses Exxon Shipping, which “held that neither [United States ex rel.]

Touhy [v. Ragen] nor the [Federal] Housekeeping Act itself allows non-party federal

agencies to forbid agency employees from complying with a court’s subpoena.” Id.

at 965. “The [Exxon Shipping] court asserted that Touhy stood only for the narrow

proposition that an individual agency employee cannot be held in contempt for his or

her refusal to produce papers in response to a subpoena duces tecum when the

employee is acting pursuant to valid agency ‘housekeeping’ regulations,” id. at 966,

but that it had not reached “the ultimate ‘question of the agency head’s power to

withhold evidence from a court without a specific claim of privilege,’” id. (quoting

Exxon Shipping, 34 F.3d at 776). “Exxon Shipping is the first decision in which a

U.S. court of appeals has held that the Housekeeping Act does not grant agency

officials the authority to withhold subpoenaed documents or employee testimony in

a civil action to which the government is not a party,” but “its holding does not

deprive the Housekeeping Act of all significance in the area of employee subpoenas”

because “[t]he legitimate governmental interest in centralizing decision-making can

still justify regulations that preclude individual employees from testifying or from

producing records until a determination whether to assert an evidentiary privilege or

claim of burdensomeness is made by responsible officials within the agency.” Id. at

967–68 (footnotes omitted).

• The article recognizes a circuit split regarding applying subpoenas to government

agencies: “The Ninth Circuit’s approach differs significantly from the deferential

standard of review applied by other circuits in similar cases. For example, in Davis

Enterprises v. EPA[, 877 F.2d 1181 (3d Cir. 1989)] and Moore v. Armour

Pharmaceuticals Co.[,927 F.2d 1194 (11th Cir. 1991)], the Third and the Eleventh

Circuits, respectively, approved agency decisions not to comply with subpoenas for

employee testimony under an ‘arbitrary, capricious, or abuse of discretion’ standard

of review. In large part, those courts measured the degree of arbitrariness or

capriciousness of each agency’s conduct with reference to the agency’s own

housekeeping standards, which plainly seek to promote the agency’s own interests

without regard for a litigant’s need for disclosure.” Id. at 968 (footnotes omitted).
46

• The article also notes that even after Exxon Shipping, there are difficulties in directing

subpoenas to government agencies because “under Touhy, agency employees who

refuse compliance with a subpoena until given permission by a superior are still

immunized from contempt proceedings,” id. at 969, and that even in a subpoena

directed to the agency, a litigant who “is refused testimony must pursue a costly and

time-consuming collateralsuit to obtain relief” under the APA, id. The article further

notes that while the Exxon Shipping court thought its decision would solve these

problems, “[t]hat assumption . . . may not be fully borne out, because, under the

Federal Rules, it is the employee and not the agency who would be required by a

subpoena to appear initially at a deposition or before a court and at any subsequent

contempt proceeding.” Id. The article concludes that “the agency would remain,

absent an independent action, beyond the court’s reach, and Touhy immunity from

contempt would protect an unresponsive employee.” Id. (footnote omitted).

Territorial Reach of Subpoenas - Generally

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197 (1992).

• “Rule 45 speaks at one point about serving the subpoena ‘within 100 miles’ from the

site of the trial or of a deposition. Subdivision (b)(2). At another point, however, it

insists that subpoena take the subpoenaed person no farther than 100 miles from that

person’s residence or place of employment. Subdivision (c)(3)(A)(ii). And at yet

another it imposes a 100-mile restriction without prescribing at all the point from

which the 100 miles is to run. Subdivision (c)(3)(B)(iii). These provisions, moreover,

are not independent ones governing different things; they interplay, and dependence

on one may create difficulty if not negotiated alongside the other. In some situations

when one consults Rule 45 for guidance about the territorial reach of a subpoena and

starts to hop back and forth among the several provisions just cited, the rule comes

off like a Tower of Babel, an inferno with shrill voices jabbering simultaneously in a

confusion of tongues.” Id. at 209.

• “If the witness’s residence or employment is more than 100 miles from the place of

trial but nevertheless within the state in which the trial court sits, the court can

‘command’ the witness, pursuant to subdivision (c)(3)(A)(ii), to appear for the trial.

But that takes a court order. If the subpoena is simply ignored by the witness, it

would appear that no contempt punishment would lie under subdivision (e).

For these reasons, the geographical reaches of ‘service’, as prescribed in subdivision

(b)(2), may be misleading. If the subpoena is captioned out of the district court of the

trial district, and is served on a transient witness within the district, all in conformity

with subdivision (b)(2), the subpoena can apparently be disregarded by the witness

nevertheless, and safely, if it turns out that the witness lives and works more than 100

miles from the courthouse. The reason once again is that if the witness disobeys the

subpoena, contempt will apparently not lie under subdivision (e). And if a motion is

made under subdivision (c)(3)(A)(ii) to ‘quash or modify’ the subpoena, the court,

according to that provision, ‘shall’ grant the motion.
47

Perhaps the ‘shall’, if used in conjunction with the ‘modify’ in that situation, would

give the court, even in a district more than 100 miles away from the witness’s

residence or employment, at least some measure of leverage to exact performance

from the witness with a court order. (If a court order issues and is disobeyed,

presumably the order will not be subject to the restrictions on the contempt

punishment that subdivision (e) imposes on direct disobedience of the subpoena.)”

Id.

• “Dwelling on subdivision (c)(3)(A)(ii) for a moment, note that it speaks of the witness

having to travel more than 100 miles ‘from the place where that person resides, is

employed or regularly transacts business’. The word ‘or’ in that quotation was

probably intended to be ‘and’. It was probably intended to say that if the courthouse

is within a 100-mile radius of any of those places, compliance is mandatory.” Id. at

213.

• “Rule 45 is a daily fundamental in civil trial practice, and yet it sometimes appears to

require at least a college minor in mathematics just to figure out safely what court to

issue the subpoena ‘from’ and where to effect itsservice with some assurance that the

subpoena will be backed by the contempt sanction if it should be disobeyed.” Id. at

214; see also id. (discussing multiple cross-references within Rule 45 to determine the

proper place for issuance and enforcement of a trial subpoena addressed to a witness).

“The attorney who effectsservice of the subpoena within the surroundings of the trial

court instead of the witness’s residence or employment, or who has any uncertainty

for any other reason about whether the witness will show up at the courthouse, had

best have taken the precaution of deposing the witness before trial. And if the witness

is truly a key one, but also an uncooperative one, the attorney, even before

commencing the action, would do well to consider, under 28 U.S.C.A. § 1391,

whether the venue of the action might be set in a district in which, or within 100 miles

of which, the witness’s residence or employment lies.” 139 F.R.D. at 214.

• The article argues that for pretrial subpoenas, Rule 45 must be construed to allow

service on the witness anywhere, when the site for deposition or production has been

set within the boundaries of subdivision (b)(2) as measured from the witness’s home

and employment. See id. at 216. “Any other construction would stultify Rule 45 and

its geography altogether by enabling a peripatetic witness to avoid the subpoena just

by remaining outside the witness’s home state and beyond 100 miles from the

witness’s own residential and employment base. That was manifestly not the intention

ofsubdivision (c)(3)(A)(ii), which is referred to explicitly by subdivision (b)(2).” Id.

at 216–17. “A balancing of allrelevant provisionstogether, in other words, suggests

that it is really not subdivision (b)(2) that sets the boundaries for service. In reality,

there are no boundaries on service, at least not as long as service is made in the

United States. The most meaningful boundaries are the residential and business

boundaries that enclose the site of the deposition or production – the boundaries

contained in subdivision (c)(3)(A)(ii). If that site is properly selected, it should make

little difference where the witness may be reached with the subpoena. A construction

any more rigid than that would allow subdivision (b)(2) to undermine rather than
48

implement the aims of subdivision (c)(3)(A)(ii).” Id. at 217. “Trying to set the site

so asto pick out the issuing court under subdivision (a)(2), figure out where to make

the service under subdivision (b)(2), and satisfy the ultimate requirement of seeing to

it that the site selected does not exceed the witness’s convenience limitations set by

subdivision (c)(3)(A)(ii), creates a circle from which escape is difficult.” Id. The

article further argues that subdivision (b)(2) may be superfluous, noting that

subdivision (b)(2)’s cross-reference to subdivision (c)(3)(A)(ii) “seems to do nothing

so much as cancel out subdivision (b)(2)’s own pronouncement in deference to the

geographical pronouncement of subdivision (c)(3)(A)(ii).” Id. at 219.

• James B. Sloan & William T. Gotfryd, Eliminating the 100 Mile Limit for Civil Trial

Witnesses: A Proposal to Modernize Civil Trial Practice, 140 F.R.D. 33 (1992).

• This article proposes that “Rule 45(b)(2) should be amended to eliminate the 100 mile

Rule in favor of national subpoena power with built-in protections against possible

abuses.” Id. at 34.

• The proposed revision of Rule 45(b)(2) is: “At the request of any party, subpoenas

for attendance at a hearing or trialshall be issued by the clerk of the District Court for

the district in which the hearing or trial is held. A subpoena requiring the attendance

of a witness at a hearing or trial and production of documents or other materials in the

possession of the witness may be served at any place within the United States. The

court may condition the enforceability of such subpoena upon the payment to the

witness of fair and reasonable expenses for travel, lodging and adequate payment for

time spent by the witness in giving testimony, including lost compensation, prior to

the date upon which the witness has been required to attend. The court may also

enter such other orders, including protective orders under Rule 26(c), as may be just

and reasonable to prevent abuses in the pretrial or trial process. On timely motion,

or on the court’s own motion, the court may quash or modify the subpoena if it fails

to allow reasonable time for compliance.” Id. at 40.

• The article suggeststhat the proposed amendment will have many benefits, including

that it would: “[e]liminate arbitrary distinctions based upon the geographical location

of the witnesses”; “[e]liminate any artificial distinctions between the federal

government and any other civil litigants”; “[c]larify the ability of parties to

compensate witnesses for any adverse economic impact of their being compelled to

testify”; “[c]onfer upon the trial court the power to dramatically limit the breadth of

deposition discovery, without a procedural due process issue arising over lack of

effective trial subpoena opportunities”; and “[e]nable the court to limit depositions for

both sides of the litigation to the extent to which specific depositions serve the

interests of justice and may be expected to expedite the cases.” Id. at 41.

• The article recognizes that there are several possible objections to elimination of the

100-mile rule for trial witnesses, including the potential for abuse of witnesses, the

promotion of a return to the traditional trial with more risks for both sides, and the

encouragement of trials at a time when courts are attempting to advance mediation

of disputes. However, the article argues that these concerns do not outweigh the

benefits of the proposal and that “[t]he federal courts already have substantial power
49

to prevent abuses by rule as well as their inherent power to control the proceedings.”

Id. at 44 (footnote omitted). The article also recognizes that the proposed change to

Rule 45 would have a collateral impact on other rules of procedure, which would

need to be worked out. Id. at 44–46.

• Don Zupanec, Subpoena – Issuing Court – Documents Located in Another District, 19 NO.

1 FED. LITIGATOR 11 (2004).

• This article summarizes the decision in Crafton v. U.S. Specialty Insurance Co., 218

F.R.D. 175 (E.D. Ark. 2003), where the court held that “[a] subpoena served on a

nonparty corporation’s registered agent in one state is not effective to require

production of documents located in another state simply because the corporation has

sufficient contact with the state where the agent islocated to be subject to jurisdiction

there.”

• The article notes that a subpoena should issue from the court in the district where the

documents apparently are located for two reasons: “Rule 45(a)(2) requires that a

subpoena for production or inspection issue from the court for the district ‘in which

production or inspection is to be made.’ A court in the district where an action is

pending does not have authority to enforce a subpoena requiring a nonparty to

produce documents located in another district. The other reason is that a subpoena

is subject to being quashed or modified if it creates an ‘undue burden.’ A subpoena

requiring production in one district of documents located outside the district may be

viewed as creating an undue burden on the subpoenaed party. This leaves it

vulnerable to being quashed or modified.” Id.

• C. Evan Stewart, International Business Raises Jurisdictional Issues, 3/16/92 NAT’L L.J.

S11, (col. 1), at n.5 (1992) (“Interestingly, the jurisdictional limitations on trial subpoenas,

issued per Rule 45, seldom are litigated to a reported decision.”).

Designation of Issuing Court

• Subpoena for Attendance at Deposition – Designation of Issuing Court, 9 NO. 7 FED.

LITIGATOR 204 (1994).

• This article discusses Kupritz v. Savannah College of Art & Design, 155 F.R.D. 84

(E.D. Pa. 1994), where it was held that “[a] subpoena directing attendance at a

deposition is invalid if the court designated on the subpoena form as the issuing court

is not the court for the district in which the deposition is to be taken.” 9 NO. 7 FED.

LITIGATOR at 204. In Kupritz, the requesting party had listed the Southern District

of Georgia as the issuing court on a subpoena for a deposition to take place in

Pennsylvania. “The court said that under the express language of Rule 45(a)(2), the

subpoena was required to issue from the District Court for the Eastern District of

Pennsylvania. Since the District Court for the Southern District of Georgia was

designated as the issuing court, the court held that it lacked jurisdiction to enforce the

subpoena or hold the witness in contempt for failing to appear.” Id.

• In the “Litigation Tips” section, the article states: “Usually, a motion to quash a

subpoena requiring attendance at a deposition should be made in the court for the
50

district in which the deposition is to take place, because that is the court in whose

authority the subpoena should issue. Where, as here, another court is designated as

the issuing court, the motion may be made in the issuing court, and probably in the

court in the district where the deposition would occur.” Id. at 205 (citation omitted).

Measuring 100 Miles

• Jerold S. Solovy & Robert L. Byman, Discovery Measuring a Subpoena’s Reach, 4/12/99

NAT’L L.J. B19, (col. 1) (1999).

• This article discusses the question of whether the 100-mile limit in Rule 45 is

“measure[d] by crow or by car,” and concludesthat “[t]he weight of authority appears

to favor the crows, but that authority is neither voluminous nor overwhelmingly

persuasive.” Id.

• The article discusses SCM Corp. v. Xerox Corp., 76 F.R.D. 214 (D. Conn. 1977),

which adopted “a straight-line, crow’s-flight approach to Rule 45,” noting that “since

1963, when Federal Rule of Civil Procedure 4(f) was adopted, every court

interpreting the 100-mile limit for service of process has used a straight line, crow’sflight measurement,” and that “it would be anomalous for there to be different

standards for the territorial reach of the court for jurisdiction over the parties and for

the power to compel nonparties to attend discovery and trial.” 4/12/99 NAT’L L.J.

B19. The article disagrees with the SCM Corp. court’s holding because: “Rule 4 was

not designed to be, and clearly is not, coextensive with Rule 45,” and because “Rule

4 addresses the court’sreach asto parties while Rule 45 addresses the inconvenience

to nonparties[, a]nd if it was not already questionable, the logic of treating parties and

nonparties equally was seriously undercut with the 1991 amendments to Rule 45.”

Id. Although the SCM Corp. court had “observed that the 100 mile limit dates back

all the way to 1789, when modern phenomena such astraffic jams were not an issue,”

the article notes that “[w]hen the 100-mile provision was adopted in the 18th century,

100 miles was a formidable distance, which likely could not be traversed in a single

day.” Id. The article argues: “Clearly, when the limit was originally imposed, no one

was thinking about straight-line or crow’s-flight measurements, since the technology

did not exist to make such measurements meaningful. The drafters of the 100-mile

limit clearly intended that the distance be measured by the actual route of travel

because there was no other way to travel.” Id.

• The article further notes a lack of clarity as to whether the burden rests with the

nonparty to object to a subpoena violating the 100-mile limit or the subpoenaing party

to move for enforcement. “Rule 45(c)(3)(A)(ii) states that a court may, on timely

motion, quash or modify a subpoena that requires a person not a party to travel more

than 100 miles. So the rule puts the burden on the subpoenaed individual to seek

relief. But not so fast. There is a structural anomaly in Rule 45. Rule 45(e) provides

a contempt remedy against any person who without adequate excuse fails to obey a

subpoena. But ‘an adequate excuse for failure to obey exists when a subpoena

purports to require a nonparty to attend or produce at a place not within the [100-

mile] limits.’ So subsec. (e) trumps the requirement of the filing of a motion to quash

seemingly required by subsec. (c). A nonparty who is served with a subpoena
51

requiring production beyond the territorial limits can simply ignore the subpoena and

need not file a motion.” Id. (citing McAuslin v. Grinnell Corp., No. Civ. A. 97-775,

97-803, 1999 WL 24617 (E.D. La. Jan. 19, 1999)) (internal paragraph structure

omitted).

• The article further points out an issue with the time for measuring the 100-miles,

arguing that the difference between the time for measurement in Rule 4 and the time

for measurement in Rule 45 is another reason that the SCM Corp. court’s reasoning

is flawed. “Under Rule 4, the 100 miles is measured at the time service is made. A

served defendant cannot defeat jurisdiction by moving. But the 100-mile

measurement for nonparty witnesses is not made at the time of the service of the

subpoena, but rather at the time for compliance with the subpoena.” Id. The article

notes one case that found that where a subpoenaed party was served while he lived

within the district, but moved to Hong Kong before the return date, the nonparty was

not required to comply with the subpoena. Id. The authors caution, however, that

a nonparty may not simply avoid a subpoena by moving before the return date, noting

that in the case that had excused compliance, the move had been previously scheduled

and had nothing to do with avoiding the subpoena. Id.

• Finally, the article notes that if the subpoenaing party wins the case, the travel

expenses for nonparty subpoenas may be included in the bill of costs, and further

notes that a party “may even be able to recover costs beyond the 100-miles limit (no

matter how it’s measured).” Id. (citing Smith v. Bd. of Sch. Comm’rs of Mobile

County, 119 F.R.D. 440 (S.D. Ala. 1988); Oetiker v. Jurid Werks GmbH, 104 F.R.D.

389 (D.D.C. 1982)).

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197 (1992).

• “When subdivision (c)(3)(A)(ii) seeks to have the court relieve a nonparty from

having to travel ‘more than 100 miles from the places where that person resides

[etc.]’, what exactly does it mean? Does it mean to assume that the person will be

starting out from home to go to the site of the deposition (production, etc.)? That is

apparently its assumption, or else we have another calculus to go through, measuring

distances not from residence or employment, asthe cited provision does, but from the

point of actual service or from yet some other point.” Id. at 220.

• David D. Siegel, Practice Commentaries, in FED R.CIV.P. 45 (“The better rule is that the 100

miles should be measured by air rather than by surface transportation with its twists and turns,

i.e., that it should be measured ‘as the crow flies’. The more recent decisions so hold.”).

Using Rule 45 to Compel Officers to Testify in Distant Fora

• Second Federal Vioxx Trial Underway Before MDL Judge in LA, 10 NO. 3ANDREWS DRUG

RECALL LITIG. REP. 3 (2006).

• This article notes that the judge in the Vioxx litigation denied a request to quash a

subpoena forcing one of Merck’sformer officersto testify at trial. The court rejected

Merck’s theory that the subpoena was improper because it required the officer to
52

travel more than 100 miles from his home to testify. “Judge Fallon said he agreed

with the PSC’s inverse argument that Rule 45(b)(2) ‘empowers the court with the

authority to subpoena Mr. Anstice, an officer of a party, to attend a trial beyond the

100 mile limit.’” The article also notes: “Judge Fallon said the [100-mile] limit is

based on a centuries-old British law designed to prevent witness harassment in a time

when such a journey could be an onerous task.” In addition, the article notes:

“Enforcement ofthe rule in today’s era of global travel and multidistrict litigation, the

judge said, ‘actually inhibits the truth-seeking purpose of litigation.’” Finally, the

article notes that the judge explained that “‘the majorityof courtsthat have been faced

with the same issue have ruled likewise.’”

• Depositions – Corporate Officer, 12 NO. 7 FED. LITIGATOR 200 (1997).

• This article discusses Stone v. Morton Int’l, Inc., 170 F.R.D. 498 (D. Utah 1997),

where the court held that “[a] party who wants to take the deposition of a particular

officer, director, or managing agent of a corporate party must first attempt to obtain

information from a representative designated by the corporation under F.R.C.P.

30(b)(6), or by some other form of discovery.” 12 NO. 7 FED. LITIGATOR 200. The

court found that “[w]hile Rule 45 requires an officer of a corporate party to appear

for a deposition in a distant location, it does not expressly state that a subpoena is the

way to obtain the attendance of a nonparty officer of a corporate party for

deposition.” Id. “In the court’s view, these rules provide neither direct nor concrete

support for Stone’s contention that a corporate party is obligated, if given specific

Rule 30(b)(1) notice ofanother party’s wish to depose a particular nonparty corporate

officer, director, or managing agent, to produce that person for a deposition. The

court considered the rules to be ‘inconsistent’ or at least ‘blurred.’” Id.

• Despite the court’s holding, the article notes: “Utilizing the procedure provided for

in Rule 30(b)(6) is not generally viewed as a prerequisite to noticing the deposition

of a particular corporate officer, director, or managing agent. A party seeking to

depose a corporation has two alternatives. One is to notice the deposition of a

specific officer, director, or managing agent pursuant to Rule 30(b)(1). The other is

to follow the Rule 30(b)(6) procedure by naming the corporation as the deponent and

allowing it to designate someone to testify on its behalf.” Id. (citation omitted).

• Don Zupanec, Subpoena – Appearance at Trial – Officer of Party, 21 NO. 9 FED.LITIGATOR

11 (2006).

• This article discusses In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664

(E.D. La. 2006), which held that “[a] district court has authority under F.R.C.P. 45

to compel attendance at trial of a party or an officer of a party served by subpoena

more than 100 miles from the place of trial.” 21 NO. 9 FED. LITIGATOR 11. “Rule

45(b)(2)’s 100-mile restriction is expressly limited by Rule 45(c)(3)(A)(ii), which

mandates quashing a subpoena requiring ‘a person who is not a party or an officer

of a party’ to travel more than 100 miles to attend a trial.” Id. The language of Rule

45(c)(3)(A)(ii) supported the “inference that Rule 45(b)(2) authorized subpoenaing

the witness, an officer of a party, to attend trial more than 100 miles from where he
53

resided.” Id. “The court acknowledged that nothing in the history of either Rule

45(b)(2) or Rule 45(c)(3)(A)(ii) suggests any intention to alter the 100-mile rule.

Nevertheless, in its view, they allowed subpoenaing the witness to appear at trial.”

Id.

• The article notes that the court’s ruling “is the predominant interpretation of Rule

45(c)(3)(A)(ii)’s ‘a person who is not a party or an officer of a party’ language and

its consequencesfor a district court’ssubpoena power under Rule 45(b)(2).” Id. “A

1991 amendment to Rule 45 added paragraph (c), as well as the reference in Rule

45(b) to subparagraph (c)(3)(A). The Advisory Committee Notes describe

subparagraph (c)(3)(A) as essentially restating ‘the former provisions with respect to

the limits of mandatory travel.’ However, prior to the amendment, Rule 45 did not

distinguish between parties and nonparties.” Id.

• The article notes a split of authority: “In making Rule 45(b)(2)’s 100-mile limitation

applicable to ‘a person who is not a party or an officer of a party,’ subparagraph

(c)(3)(A) may reasonably be interpreted as excluding parties and officers of parties

from the limitation. Quite a few courts have so interpreted it, at least implicitly, in

finding that parties and officers of parties may be subpoenaed to appear at trial more

than 100 miles from where they are located. . . . Not unexpectedly, there are a few

courts whose interpretation differs.” Id. (citations omitted).

• The article also points out that “the reason for the [100-mile] limitation no longer

makes much sense, given the relative ease of travel.” Id.

• Don Zupanec, Subpoena – Attendance at Trial – Geographic Limitation – Parties and

Officers, 23 NO. 9 FED. LITIGATOR 13 (2008).

• This article discusses Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213 (E.D. La.

2008), which held that “F.R.C.P. 45(c)(3)(A)(ii) does not expand courts’ power to

subpoena attendance at trial of parties and officers of parties beyond Rule 45(b)(2)’s

geographical limits.” 23 NO. 9 FED. LITIGATOR 13. The court found that “[t]o read

the ‘subject to Rule 45(c)(3)(A)(ii)’ clause [in Rule 45(b)(2)] as expanding the

geographical scope of subpoena authority ignores the ordinary meaning of ‘subject

to.’ (court’s emphasis). That a rule or statute defining judicial power or a legal right

is ‘subject to’ some other rule or statute ordinarily means that the power or right is

limited by the referenced provision (court’s emphasis).” Id. The court concluded that

“[t]he better reading of Rule 45 is to view subdivision (b)(2) as defining the

geographical scope of a court’s subpoena power, subject to the limitations described

in subdivision (c)(3)(A)(ii). Thus, to compel attendance at trial, a subpoena must be

served in one of the places listed in Rule 45(b)(2) and not be entitled to the protection

of Rule 45(c)(3)(A)(ii), which applies to nonparty witnesses but not parties or party

officers.” Id. “The court did not view the 1991 amendments to Rule 45, which added

subdivision (c) as well as the reference in Rule 45(b) to subdivision [(c)(3)(A)], as

authorizing nationwide service. The amendment did not alter the geographical

limitations on proper service but subjected courts’ subpoena power to subdivision

(c)’s protections. Nothing in the Advisory Committee’s Notes to the amendments

suggests a scheme of nationwide service. The Notes make clear that subdivision (c)
 This particular citation does not appear to be available on Westlaw, but I believe the referenced case is also located 8

at Price Waterhouse LLP v. First American Corp., 182 F.R.D. 56 (S.D.N.Y. 1998).

54

enlarges and clarifies protections for subpoenaed persons. In light of the widespread

pre-1991 understanding that courts’ subpoena powers are geographically limited, if

the amendments created a system of nationwide service, it would be reasonable to

expect they would say so directly.” Id.

• In the “Litigation Tips” section, the article states: “This is not the predominant view

of the interplay between Rules 45(b)(2) and 45(c)(3)(A)(ii). These provisions are

generally interpreted as authorizing compelled attendance at trial by means of

subpoena served on a party or an officer of a party outside the district where the

issuing court is located and beyond Rule 45(b)(2)(B)’s 100-mile limit.” Id. (citations

omitted). “Interestingly, while thisremains the predominant view, several courts have

recently rejected it, concluding instead that Rule 45(b)(2) specifies requirements for

proper service of a subpoena to compel attendance while Rule 45(c)(3)(A)(ii) sets

forth circumstances under which a subpoena must be quashed, but does not alter the

requirements for proper service.” Id. (citations omitted). “Under the predominant

view, a subpoena to compel trial attendance of a party or party officer need not be

served in accordance with Rule 45(b)(2)’s geographical limitations. Under the

minority interpretation, it is necessary to serve the subpoena in one of the places listed

in Rule 45(b)(2). The subpoena is effective only if Rule 45(c)(3)(A)(ii) does not

apply, i.e., only if the person subpoenaed does not reside or work more than 100

miles from the district court’s location – unless the person is a party or a party

officer.” Id.

• The article notes that “[n]o appeals court has yet weighed in on the interplay between

Rules 45(b)(2) and 45(c)(3)(A)(ii). The proper interpretation remains an open

question.” Id.

International Issues

• Christopher Joseph Borgen, International Legal Developments in Review: 1998, 33 INT’L

LAW. 424, 428 (1999) (noting that in First Am. Corp. v. Price Waterhouse LLP, 1998 WL

474196 (S.D.N.Y. Aug. 13, 1998), the court had “concluded that the fact that the foreign 8

non-party did businessin New York through an agent wasinsufficient to permit a deposition

in New York” because “‘‘the place’ where [Price Waterhouse U.K.] and its partners and

employees ‘reside,’ are ‘employed,’ or ‘regularly transact[s] business in person’ is not New

York,’” but that if “the deposition were to be conducted in England, the subpoena could not

be issued from New York, as Rule 45 contemplated that the subpoena issue from the district

in which the witness was and that [the] district be no more than 100 miles from the witness’s

residence, employ, or place in which he or she regularly transacts business”) (footnote

omitted).
55

• Lawrence W. Newman & Michael Burrows, Extraterritorial Reach of Rule 45 Subpoena,

4/16/92 N.Y. L.J. 3, (col. 1) (Apr. 16, 1992).

• This article addresses “whether a subpoena duces tecum issued pursuant to Rule 45

and served on a domestic branch of a corporation with branches outside the United

States may properly reach documents in the custody or control of the corporation

located outside the United States,” and concludes that the answer is uncertain under

the text of Rule 45. The article notes that prior to the 1991 amendments to Rule 45,

there was a split of authority as to the extraterritorial reach of a subpoena. The Fifth

Circuit, in Cates v. LTV Aerospace Corp., 480 F.2d 620, 624 (5th Cir. 1973), held

that “‘a court cannot order production of records in the custody and control of a nonparty located in a foreign judicial district.’” 4/16/92 N.Y. L.J. 3 (quoting Cates, 480

F.2d at 624). However, the article notes that while some courts agreed with the

Cates holding, others determined the issue differently. For example, in Ghandi v.

Police Dept. of City of Detroit, 74 F.R.D. 115 (E.D. Mich. 1977), the court held that

“pursuant to 45(d)(1) a deponent must ‘produce for inspection and copying the

documents within its custody named in the subpoena regardless of where the

documents are actually located.’” 4/16/92 N.Y. L.J. 3 (citing Ghandi, 74 F.R.D. at

120–22). The article notes that “[t]he reach of a subpoena duces tecum issued

pursuant to old Rule 45 was extended oversees in In re Jee[, 104 B.R. 289 (Bankr.

C.D. Cal. 1984)].” Id.

• The article finds that amended Rule 45(a)(2) has not yet been clarified by the courts.

“The sole guide available is the Notes of the Advisory Committee that declare with

regard to Rule 45 that ‘Paragraph (a)(2) makes clear that the person subject to the

subpoena is required to produce materialsin that person’s control whether or not the

materials are located within the district or within the territory within which the

subpoena can be served.’” Id. The article argues that the text of Rule 45(a)(2) is

unclear: “Unfortunately, the actual language of subparagraph (a)(2) does not ‘make

clear’ that this amendment stands for the proposition attributed to it by the Advisory

Committee. There is no logical connection between the words of Rule 45(a)(2) and

the power attributed to it: No cases are cited, no explanation is given by the Advisory

Committee, and no mention is made of the dispute between the Cates and Ghandi

courts.” Id. The article notes that a court faced with deciding this issue will have

three choices: “the narrow position set forth in Cates, the ‘expansionist’ position set

forth in Ghandi or a wholly new course, perhaps a compromise between the

aforementioned extremes.” Id. The article concludes that “[i]n light of what appears

to be a conscious, long-term effort to pattern Rule 45 discovery procedures after

those in Rule 34, it is logical that subparagraph (a)(2) authorizes the production of

documents and other tangibles located overseas, since some courts have held that

such documents come within the scope of a document request made pursuant to Rule

34.” Id. The article notes that a court faced with this issue might come up with an

entirely new approach, concluding that the wholesale revision of Rule 45 in 1991

renders previous case law less persuasive. See id.
56

• Gregory P. Joseph, Assessing Federal Rule 45, 12/28/92 NAT’L L.J. 23, (col. 1) (1992).

• “The person subpoenaed for documents under Rule 45 must produce all documents

that are in his or her custody or control, even if they are outside the district in which

the subpoena is served. . . . [For] example, the lawyer appearing before the District

of Minnesota is empowered to subpoena a New York company for documents that

the company controls in Africa or Europe.” Id. (footnote omitted).

• C. Evan Stewart, International Business Raises Jurisdictional Issues, 3/16/92 NAT’L L.J.

S11, (col. 1) (1992).

• This article examines this question: “Can a civil litigant, be it a private party or a

federal agency, compel a U.S. subsidiary of a foreign corporation to produce

documents of its parent company, or produce its parent company’s officers to give

testimony, when there is no jurisdictional authority over the parent or its officers?”

Id. The article concludes that “[t]he answer relates to the ability of the subsidiary to

control its parent,” citing to one case that had found that a U.S. subsidiary was not

required to produce information in the possession of its parent company because it did

not control the parent and did not have possession, custody, or control of the

information, and to another case that held that a plaintiff was required to produce a

former officer for deposition because the former officer continued to be associated

with corporate entitiesin which the plaintiff had a majority controlling interest and the

plaintiff had the power to produce him. Id.

• Noting that often a foreign parent will place one of its officers as a director of its U.S.

subsidiary, and that this subjects these individuals to being called to testify in civil

litigation, the article suggests that this can be avoided by seeking protective orders

under Rule 26(c) or by relying on certain courts’ standing orders, such as one that

provides that “any officer, director or managing agent of a corporate party can submit

an affidavit in response to a deposition notice or subpoena, stating that he or she has

no knowledge regarding the dispute or controversy.” Id.

• David D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules

of Civil Procedure, 139 F.R.D. 197, 215 (1992) (“Service of a U.S. subpoena on an alien

outside the country is a nullity, but service outside the country on a United States citizen is

permissible under a special, albeit rarely used, statute, 28 U.S.C.A. § 1783.”).

Production Format

• Sedona Commentary, supra, at 204 (“Although Rule 45 was amended to clarify the right to

ask for a specific production format, it is not yet clear that those serving subpoenas are taking

advantage of this change.”).

Necessity of Subpoena for Party Deposition

• C. Evan Stewart, International Business Raises Jurisdictional Issues, 3/16/92 NAT’L L.J.

S11, (col. 1) (1992) (“To compel a person to be a deponent, regardless of party or non-party

status, a subpoena under Rule 45 is necessary.”) (emphasis added).