On December 1, 2013, amended Rule 45 will become part of the Federal Rules of Civil Procedure. This will introduce fairly significant changes in the procedures for obtaining third-party discovery. The biggest changes concern third-party subpoenas, both for depositions and for production of documents.
In the Rocket Docket, we often face the situation where discovery closes before a court elsewhere rules on a motion to enforce a third-party subpoena. This can happen even when third-party subpoenas are served at the beginning of discovery. Magistrate judges are understanding, and will likely extend discovery for the purposes of obtaining the third-party discovery, but the practical limits are still there due to the typical 9-month window between the filing of the Complaint and the trial in the Eastern District. The Rule 45 amendments somewhat improve the situation because they permit transfer of subpoena-enforcement to the initial court by consent (barring consent, provide an opening to argue for transfer). The Committee Note allows that “transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation …” But the prospect of being caught in two different courts working on two very different timelines remains.
The Major Changes to Rule 45
There are four major changes in the soon-to-be effective Rule 45 amendments:
- The court where the underlying matter is pending will now be considered the court “issuing” the subpoena for deposition testimony or document production. This is in contrast to current practice where the court sitting in the district where the person is found is considered the “issuing” court.
- Amended Rule 45(b)(2) provides for nationwide service of the subpoena (the same process is followed in criminal cases). . The caveat here is that a subpoena is returnable (i.e., where the deponent or the documents are to be produced) only within the state where the recipient or documents are found (depending on the state’s rules), or within 100 miles of where the recipient lives or works. This applies to trial subpoenas as well. The inclusion of trial subpoenas under this provision clarifies a situation that arose in the Vioxx Litigation. (Note that a party representative or a corporate officer might be compelled to appear at a deposition where the litigation is pending, but a trial subpoena for that same person is limited by the in-state/100-mile rule).
- You must serve notice to the other parties to the litigation before service of the subpoenas. Notice must include a copy of the subpoena itself.
- As explained above, the amendment adding Rule 45(f) permits transfer of compliance proceedings—both protective orders and motions to compel– back to the court where the underlying matter is pending. Objections should be made in the court where the subpoena recipient resides, and absent consent, a motion to compel must be initiated in that court as well, but then transfer is a possibility.
The rule-makers achieve their goal in simplifying third-party discovery, but from our vantage point in the Eastern District, an easier standard for transfer of enforcement proceedings to the issuing court would be preferred. Even under the “exceptional circumstances” standard, distant courts may be inclined to send third-party discovery issues to the issuing court.
Let’s use a hypothetical to help understand how a Rule 45 Subpoena might be treated after the changes take effect:
Our Hypothetical Case: Partner Holdings, LLC v. Delta Investments, Inc.
Partner Holdings is embattled in a hotly contested dispute with Delta Investments in the U.S. District Court for the Western District of Texas over a bungled telecommunications deal. Partner serves Rule 45 discovery in December 2013 on Tango 3P Communications, a Virginia LLC located in Fairfax County, Virginia. Partner notifies Delta, and then issues the Rule 45 subpoena from the Western District of Texas, the subpoena is served on the Virginia registered agent for Tango 3P.
Assume you represent Tango 3P Communications. As a practitioner, how do you properly quash the third-party subpoena under the amended Rule 45?
Partner’s request seeks confidential trade secrets and commercial information as well as privileged information in the form of documents within 21 days. Additionally, Partner requests documents from Tango 3P other telecommunication contracts with Delta which are unrelated to Partner’s current litigation with Delta. Partner directs Tango 3P to deliver its responses to Partner’s law firm’s Washington, D.C. office.
Note that the requirement of notice before service does not mean that Partner would have to produce to Delta the documents produced by Tango 3P. This still requires a Rule 34 Request for Production.
What grounds are there to quash the subpoena? Since Partner is only seeking documents from Tango 3P, the grounds available to quash the subpoena are:
- A failure to allow for a reasonable time to comply;
- The subpoena seeks privileged information, or
- The request is an undue burden on the recipient.
Under amended Rule 45, the proper court for a motion to quash the subpoena is the jurisdiction where the recipient is located, in this case, the Eastern District of Virginia.
This is the first filing for Tango 3P and requires Tango 3P to open a “Miscellaneous” matter with the Clerk and pay the filing fee (the current filing fee in the EDVa is $46). Tango 3P then must file the following:
- A notice of the motion;
- A memorandum of law;
- Supporting affidavits;
- A proposed order; and
- Proof of service on the issuing party.
Timing is key. The motion should be filed prior to the return date of the subpoena or within 14 days of service, whichever is earlier. Missing the 14-day limit is grounds for denial of the motion.
Before setting the motion for a hearing date, you must consider the local rules of the issuing court and whether those rules require the parties to meet and confer. In Tango 3P’s case, both the Western District of Texas and the Eastern District of Virginia require parties to meet and confer in good faith before even filing the motion (and must state in their memorandum that a meet and confer actually happened). A failure to meet and confer is grounds for the magistrate judge to deny the motion to quash. This should come as no surprise to practitioners in the EDVa, where meaningful meet and confers are demanded by the magistrate judges, and parties are admonished (and sometimes penalized) for failing to abide by the rules.
In the hypothetical, the motion to quash is heard by the magistrate judge five days before the return date of the subpoena. The judge decides against transferring the motion to the Western District of Texas, partly because Tango 3P objects to the transfer and partly because the circumstances presented in the motion are not exceptional.
The judge agrees with your argument that Partner’s requests seek privileged and confidential communications, but disagrees with your position that the time to comply with the demand is unduly burdensome or that the additional requests made concerning Tango’s contracts with Delta is overly broad. The judge grants in part and denies in part your Motion to Quash and directs Tango 3P to comply within 30 days of the judge’s ruling.
If there are compliance issues, the EDVa court may enforce its order. The amended Rule also permits transfer of compliance issues, and in fact encourages the involved judges to consult with each other.
The amendments to Rule 45, especially as they concern third-parties, simplify the subpoena process and afford more protection to third-parties attempting to quash subpoenas for production of documents or testimony. The amendments also provide more protection to non-issuing parties in discovery matters by demanding notice prior to service of the subpoena.
Take care in preparing Rule 45 subpoenas, providing the required notice, be wary of the 14-day objection provision, and be on the lookout for the possibility of having to enforce or defend a subpoena in a foreign jurisdiction
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