Introduction Now that you’ve likely had your fill of turkey sandwiches, turkey salad, turkey soup and the like, there is a new development on which to focus. On midnight December 1, 2015 the eDiscovery-related Federal Rules of Civil Procedure changed for the first time since their adoption exactly nine years ago. The changes fall into three categories:
When we all return to work from Thanksgivukkah weekend, Federal Rule of Civil Procedure (FRCP) 45, governing non-party subpoenas, will have changed, effective December 1, 2013. To review the new content, follow one or both of these links:
- Redline version of amendments to Rule 45 (new material underlined; deleted material lined out)
- Clean version of new Rule 45 (eff. 12/1/13) (submitted by the U.S. Sup. Ct. to Congress 4/16/13)
A set of accompanying changes will also have been made to FRCP 37(b)(1), as reflected at these other links:
- Redline version of amendment to Rule 37(b)(1)-(2) (new material underlined)
- Clean version of new Rule 37(b)(1) (eff. 12/1/13) (and the new heading for Rule 37(b)(2))
- Rest of Rule 37 (that remains unchanged; still reflecting old subsection (b)(1) as of 11/27/13)
And, the all important Advisory Committee Notes can be accessed here:
- Rule 45 Advisory Commitee Note (8 pages of thorough discussion)
- Rule 37 (b)(1) Advisory Commitee Note (1 very short paragaph)
Overview of Several of the Key Changes
1. Issuance from Court Handling Underlying Case
- Now a subpoena not only can but “must be issued from the court where the action is pending.” (emphasis added)
- No longer must it issue from a court located in the geographical area for compliance.
2. Nationwide-Service and Compliance-Location Clarification
- Now “[a] subpoena may be served at any place within the United States,” even though the compliance location must be tethered to the recipient’s place of residence, work or business.
- No longer does one ever need to refer to state law — as to, e.g., compliance location.
3. Forum for Subpoena-Related Motions/Disputes — a Change but With Some Flexibility
- Now, subpoena-related disputes will typically be resolved in the district court in the compliance location; however, there is a possibility of transfer of a pertinent motion to the issuing court.
- FRCP 45(d)(3) [formerly (c)(3)]
- FRCP 45(f) [NEW subsection]
- Advisory Committee Note to 45(f)
- “In some circumstances . . . transfer may be warranted in order to avoid disrupting the issuing court’s management of the underlying litigation, as when that court has already ruled on issues presented by the motion or the same issues are likely to arise in discovery in many districts[; t]ransfer is appropriate only if such interests outweigh the interests of the nonparty served with the subpoena in obtaining local resolution of the motion.”
- No longer does one have to bring such a motion before the issuing court; however, “the court where compliance is required . . . may transfer a motion . . . if the person subject to the subpoena consents or if the court finds exceptional circumstances.”
As to a range of eDiscovery issues related to non-party subpoenas, see:
— eDiscovery: Subpoenas and Non-Party Production Issues (lengthy slide deck from a webinar I did for Lorman Education Services 5/20/13)
As to the brand new FRCP changes (including ones not touched on in this post), see these excellent resources:
— Changes to [FRCP] 45 . . . Promise To Simplify Federal Subpoena Practive, by Christopher Tompkins & Ethan E. Kent, Jenner & Block (11/14/13)
— Rule 45 Third‐Party Subpoenas and Upcoming Amendments, by Jonathan E. Goldberg of SNR Denton and Darren A. Craig of Frost Brown Todd, Strafford Publications (7/11/13)
— Report of the Civil Rules Advisory Committee (6/6/11)