HOW TO UNDERSTAND THE FEDERAL RULES OF CIVIL PROCEDURE: 45

This article will provide guidance on How to understand the federal rules of civil procedure: 45.  The Federal Rules of Civil Procedure (FRCP) are a set of rigorous guidelines to which the United States courts must adhere.  In 1938, the FRCP was designed by Congress to harmonize the federal court system. Before this, it had been not easy to enforce federal laws since federal courts followed separate processes and norms. Click here to watch our introduction video.

The FRCP has undergone many revisions since its establishment in 1938. Nevertheless, it continues to be a crucial aspect of American courts. The Federal Rules of Civil Procedure are followed by several state and municipal courts and federal courts. Our Undisputed Legal process servers are well-versed in the specifications of the Federal Rules and can help serve you regardless of which court’s jurisdiction comes into play. Click Here for Frequently Asked Questions About Process Servers!

Form of a Subpoena

Requests for evidence under subpoena must always provide the name of the court that granted it and the case’s civil-action number and title. A subpoena must specify a time and place and order the person or persons it addresses to either appear and testify or provide chosen documents. This can also include either data stored electronically or physical items in that person’s control. A subpoena can also call for the examination of the premises. A subpoena for producing documents or other tangible evidence is called a subpoena duces tecum. A subpoena for the attendance of witnesses is known as a subpoena ad testificandum. The third form of a subpoena is called an information subpoena and usually requires a third party to provide records or appear in court to answer questions. Click here for information on How Rush Process Service Can Expedite Your Case.

Any subpoena requiring a witness to appear at a deposition must specify how the witness’s statements will be recorded.  The answering party must provide permission to examine, copy, test, or sample the materials when a subpoena requests producing papers, electronically stored information, or physical items. Getting a subpoena from the court currently handling the case is necessary to retain jurisdiction.  If the issuing court grants permission to the attorney, the attorney may likewise issue and sign the subpoena. Click here for information on How Process Servers Protect Your Rights: Myths Debunked

Before being served on the individual or entity to whom it is directed, each party must be served with a notice and a copy of the subpoena if the subpoena requests the production of papers, electronically stored information, physical items, or the examination of premises in anticipation of trial. Our Undisputed Legal process servers are equipped to serve different subpoenas across the United States. Subpoena Duces Tecum, Subpoena Ad Testificandum, and Information Subpoenas are the sole purview of our process service section for Subpoena Services. We guarantee the correctness and efficiency of every service by implementing a system for service subpoenas. The service of a subpoena is intricate and must follow both state rules and the FRCP 45. Consequently, a dedicated private process service agency can help handle your papers carefully. Click here for information on How To Identify A Good Process Service Agency.

Responsibilities in Responding to a Subpoena

Subpoenas may be served by anyone at least eighteen and not a party to the suit. In addition to serving the relevant party with a copy, the plaintiff must also pay for their attendance for one day and their mileage if they must travel to court.  A subpoena may be served anywhere in the US, and a U.S. citizen or an out-of-state resident can be served with a subpoena in specific circumstances. Courts disregard the distance traveled on the road when calculating the hundred-mile distance, instead using the straight-line technique (‘as the crow flies).

Documents must be produced in the same manner they would be stored typically in response to a subpoena. The responding party must deliver electronically stored information (ESI) in its usual format if no specific form is specified in the subpoena. Additionally, the replying party is optional to provide identical ESI in several formats.

The court may transfer a motion under the rule to the issuing court if an individual identifies extraordinary circumstances if compliance is necessary, but a subpoena was not issued.   If the subpoena is for tangible evidence, a description of what it seeks should be included, and for subpoenas requesting witness testimony, the method of recording testimony.

Proper service is necessary for a subpoena to be enforced after it has been issued. A subpoena issued in a federal civil litigation case may be null and void if the required procedures for serving the document are not followed. In addition to being a formality meant to notify the receiver, this raises the more nuanced question of whether or not the court has jurisdiction over the individual or entity. The burden of proof is with the party asserting inaccessibility in a request to compel or protective order. Even after making that finding, the court may still compel discovery from such sources if the party asking for it can prove there is sufficient reason, taking into account the restrictions of Rule 26(f)(4)(C) and (D). The court may set conditions for discovery.

Contempt in the Federal rules of civil procedure

To put it simply, contempt states that there will be repercussions for anyone who does not answer a subpoena. If someone refuses to comply with a subpoena or an order linked to it, the court may hold them in contempt. Penalties, fines, and possibly jail time may follow from this.

A subpoena is a formal document or appearance requirement imposed by a court. Subpoenas are used by government authorities to conduct investigations, both civil and criminal and to ensure that individuals appear in court. Effectively, a subpoena is a judicial command that cannot be ignored. A subpoena does not always indicate that the recipient is the subject of an inquiry; the subpoenaing party may simply be seeking documents related to a lawsuit against another party. In any case, a duly issued subpoena will need to be followed. Civil or criminal penalties may be imposed for noncompliance with a subpoena.

Subpoenas are strong instruments, and when challenged, the courts must examine them carefully to ensure they follow the rules. Our Undisputed Legal process servers can help serve your subpoenas in time and completely to prevent a party from being held in contempt. 

Confidential information in a subpoena

A judge has the authority to vacate a subpoena that demands the production of certain confidential information under Federal Rule of Civil Procedure 45. Trade secrets and other sensitive information about research, development, or commerce are examples given in Rule 45. Any party who receives information in response to a subpoena has the right to know who is making the claim and what the basis is if the information is susceptible to a claim of privilege or protection as trial-preparation material. 

If one side asserts that disclosing the information would violate the trial-preparation rule, the other side must expressly object and provide the court enough information to decide without discussing the specifics of the requested data. Subpoenaed parties or their solicitors must be served with written objections to the subpoena for inspection or production by either the time specified in the subpoena for compliance or fourteen days after service. Case cases have established that subpoenas can be used to obtain evidence from other parties, but only if the parties involved do not attempt to circumvent FRCP 34. If one side wants to ensure the other has the original document they made during discovery on hand at trial, they may utilize a subpoena to get it. 

Except in cases where a court order specifically requires compliance, the party that has filed a written objection is not required to carry out the task.  A motion to compel is not required when the parties are already engaged in discovery litigation and the third party is a related company of one of the parties.

Subpoena compliance is never easy, but the issuing party cannot place an ‘undue burden’ on the subpoenaed party according to Federal Rule of Civil Procedure 45. Such a situation often occurs when one side does not insist that the subject be present, as with ‘document only’ subpoenas.

Many documents may be covered by purposefully broad wording used by parties issuing subpoenas. This might be due, in part, to the fact that the person making the offer is embarking on a ‘fishing expedition’ without a clear idea of what they want. Alternately, to obstruct, some parties issue subpoenas that are too broad. Regardless, the receiver is not obligated to search their records and provide every document that may be covered by the subpoena just because it includes wide wording. A party might argue that a subpoena’s breadth is excessive by stating that it burdens them unreasonably.

Procedure for Responding to a Subpoena Under FRCP 45

After confirming the subpoena’s validity and enforceability, the next step is ascertaining its extent.   There is no specified minimum amount of time that a person is required to reply to a subpoena. In most cases, the issuing party decides on the duration. A shorter amount of time than the typical thirty-day duration may be permissible under some situations. Another option is for the party issuing the subpoena to grant the subject additional time to collect and prepare the necessary documents if the subpoena contains extensive demands.

A subpoena must be issued by the court where the action is underway rather than by the court where compliance is needed.  The regulations regarding the acceptable locations for serving subpoenas have also been significantly streamlined. Rule 45(b)(2) states that ‘[a] subpoena may be served at any place within the United States,’ removing the complicated criteria of Rule 2’s prior iteration. Therefore, subpoenas may now be served nationwide. Our Undisputed Legal servers provide service for subpoenas across the country. All process servers adhere to the licensing, education, and bonding requirements imposed by the jurisdiction in which they operate. Undisputed Legal Inc. has the dedication and expertise to ensure your process is served anytime, anywhere, and accurately. A party issuing a document subpoena must notify all other parties before serving the subpoena. 

Motion to Quash or Modify 

Nevertheless, a judge may quash or amend subpoenas under certain conditions. It is important to be aware of the following defenses available to the party if they are subject to a subpoena; without that, they must comply with its requests. 

For a motion to quash to be deemed ‘timely, ‘ it is customary for courts to stipulate in the subpoena the date by which the motion must be submitted. The court where compliance is required—which could or might not be the same as the court where the action is pending—is the one to whom the rule appropriately assigns the task of bringing a request to quash or modify. Subpoena compliance is mandatory upon receipt.

If the subpoena gives an unreasonable time limit to comply or requires the subject to travel more than the hundred miles allowed under Rule 45(c,) the motion to quash may be requested.  Further, the court must grant the motion to quash if the subpoena requests confidential or otherwise protected information and if the subpoena burdens the subject.

Courts, when deciding whether a subpoena places an ‘undue burden’ on a party, will identify [A.] the request’s relevance, [B.] the party’s need for the documents, [C.]  the scope of the request, [D.] the period it covers, [E.] the specificity of the documents’ description, [F.] the burden itself, and [G.]  the non-party status of the subpoena recipient.

The Rule specifies that the district where compliance is needed is the only place such motions may be made. This regulation change aims to shield local non-parties from unnecessary travel costs and hassles. This permits the court from the district where compliance is needed to transfer subpoena-related motions to the issuing court under specific conditions, notwithstanding the general rule on motions. This transfer may only be made if the subpoenaed party gives their assent or the court finds ‘exceptional circumstances’ warranting it. 

Who is Authorised To issue a subpoena

The clerk of court, a notary public, or a justice of the peace is authorized to issue subpoenas. These subpoenas must include the court’s name and the action’s nature. The party seeking the subpoena must fill it out before service; a subpoena issued by the clerk, notary public, or judge of the peace will be signed but otherwise blank.  Splitting or combining a command to create or allow examination; defining the format for data stored electronically

Anyone issuing or representing a subpoena must ensure that the person or entity served with the document does not incur unreasonable costs or hardship due to complying with the subpoena. If the subpoena is unreasonable and oppressive, the court may [A.] modify or revoke it or [B.]  condition denial of the motion on the person seeking the documents, data stored electronically, or physical items presenting proof of the reasonable cost of production. The court must hear the motion as soon as possible but no later than the time specified in the subpoena. The answering party must provide permission to examine, copy, test, or sample the materials when a subpoena requests producing papers, electronically stored information, or physical items. It is not necessary for an individual to physically be present at the location of production or inspection if they are only required to attend court for a deposition, hearing, or trial; this includes electronically stored information, tangible objects, or documents.

It is only possible to serve a subpoena to take a deposition after the notice has been served. Each party must be provided with a copy of the subpoena before its being served on the person to whom it is intended, unless the subpoena requests the production of papers, electronically stored information, physical goods, or the examination of premises before trial. Each party must be served with a copy of the objection to the subpoena’s requested production or inspection, as well as notification of any production that has been made, or each party must be provided with a copy of the production itself if the subpoena calls for inspection or production before trial. 

At Undisputed Legal, we ensure various safeguards for subpoena service.  We provide witness fee calculation as well as advancing witness fee services. Further, regardless of where in the United States you are located, we are adept at processing out-of-state subpoenas and so-order Subpoenas. 

Since a subpoena is now required to be issued by the court where the action is underway rather than by the court where compliance is needed, it can often take time to identify the scope and jurisdiction of the subpoena; we at Undisputed Legal can handle it. We provide personalized ‘Real-Time’ Email Status Updates so that you are always aware of where your papers are. We ensure that you are in the loop with the service of your papers. No job is too large or too small! If you found this article helpful, kindly consider leaving us a review. Click the link to share your feedback, and we would greatly appreciate a five-star review.

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Documents can be faxed at (800) 296-0115, emailed to ps@undisputedlegal.com, mailed, or dropped off at any of our locations. We do require pre-payment and accept all major credit and debit cards. Once payment is processed, your sales receipt is immediately emailed for your records.

Drop-offs must call and make an appointment first to be added to building security to permit access to our office. Documents for service must be in a sealed envelope with payment in the form of a money order or attorney check (WE DO NOT ACCEPT CASH) payable to UNDISPUTED LEGAL INC. Our receptionist will receive all the documents.  Click Here for Frequently Asked Questions About Process Servers!

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FOR ASSISTANCE SERVING A SUBPOENA

Pick up the phone and call (800) 774-6922, or click the service you want to purchase.  Our dedicated team of professionals is ready to assist you. We can handle all your subpoena service needs; no job is too small or too large!

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Sources

1. ‘Federal Rules of Civil Procedure.’ United States Courts, www.uscourts.gov/rules-policies/current-rules-practice-procedure/federal-rules-civil-procedure. Accessed 12 Feb. 2024.

2. Within the state where the non-party witness lives, works, or regularly transacts business in person, but only

if the non-party witness would not incur substantial expense to attend the trial.

(FRCP 45(c)(1)(A); FRCP 45(c)(1)(B)(ii).)

3. FRCP 45(a)(1)(C))

4. FRCP 45(g))

5. Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996)

6. Flatow v. Islamic Republic of Iran, 196 F.R.D. 203, 208 (D.D.C. 2000). (The nonparty’s timely objection to the plaintiff’s subpoena rendered the failure to deliver immunity from punishment.

7. Vetstem Biopharma, Inc. v. Cal. Stem Cell Treatment Ctr., Inc., No. 2-19-cv-04728 (C.D. Cal. Jan. 25, 2023)

8. Referenced is Federal Rule of Civil Procedure 45(a)(2). ‘A subpoena must be issued as follows: (A) for attendance at a hearing or trial from the court for the district where the hearing or trial is to be held; (B) for attendance at a deposition from the court for the district where the deposition is to be taken; and (C) for production or inspection… from the court of the district where the production or inspection is to be made.’

9. The procedures governing issuing and serving subpoenas have also been simplified. ‘If the subpoena commands the production of documents, electronically stored information, tangible things, or the inspection of premises before trial, then a notice and a copy of the subpoena must be served on each party before it is served on the person to whom it is directed,.’

10. Rule 45(d)(3

11. Rule 45(d)(3)(A)

12. Courts often consider seven days or less as unreasonable and fourteen days or more as presumptively acceptable when it comes to

13. When subpoenaed papers are amenable to electronic or postal transmission and a physical presence is not required, courts often hold that 45(c)(2)(A)’s 100-mile requirement for document production does not apply to United States v. Brown (N.D. Ohio 2016)

14. United States Federal Rules of Civil Procedure 45(3)(a).

15. If a transfer like this takes place and ‘the attorney for the person subject to a subpoena is authorized to practice in the court where the motion was made, the attorney may file papers and appear on the motion as an officer of the issuing court,’ as stated in Rule 45(f), then the attorney may submit the necessary paperwork and appear in court to argue the case.

16 Rule 26(c) applies to the subpoena that demands physical objects, digital files, or other evidence from the person or entity being subpoenaed to provide evidence regarding any of the topics covered by the examination

17. The Supreme Court in Wultz v. Bank of China, Ltd., No. 13-1282(RBW) ‘ All current actions should be subject to the rule revisions to FRCP 45 ‘insofar as just and practicable’ in its rule-making order.’

 

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