Changes to Federal Rules of Civil Procedure 44

If you are not a lawyer, excuse us for totally “geeking out” on this post.

The proposed amendments to Rule 45 of the Federal Rules of Civil Procedure will go into effect on December 1, 2013.
Copies of the amendments are found at this link  http://www.uscourts.gov/RulesAndPolicies/rules/pending-rules.aspx

Brief description of the changes:

  1. Emphasis on one aspect of Rule 45 that is often overlooked-a subpoena issuer mush give notice of the subpoena to other parties. There is no material change in the rule here but it helps lawyers who don’t regularly practice in Federal court.
  2. The territorial limits of that subpoena power of a Federal District court is limited to the territory within the court’s district or 100 miles of the court.
  3. The third changes permits a motion to transfer an outcome determinative issue related to subpoena in a different court back to the trial court.  The standards are high but it is permitted.
  4.  The fourth amendment permits a a trial court to be the issuing court for subpoenas in different states.  Presently, a matter was pending in Houston and a subpoena had to be issued in San Francisco, the attorney for the subpoena issuer would create a caption with the district court for San Francisco and then serve it.   The San Francisco court would be the the enforcement court as well as the issuing court.  The new rule permits nationwide service of process directly from the court where the trial will take place.  This is both a cost saving and time saving measure by reducing duplications in court dockets that have open files just because they are the issuing court for an out of district subpoena.

Overall, the amendment to the rules do not make any substantive changes but makes litigation more efficiently.  In the next year, it will be obvious which lawyer has not read the amendment to Rule 44 of the FRCP when it comes to multidistrict litigation when they issue subpoenas incorrectly or object to a transfer of an out of district subpoena back to the trial court.  Multidistrict litigation often comes into play in intellectual property lawsuits, class action employment or FLSA lawsuits, and commercial litigations involving multiple parties located in different states.

 

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