For practitioners that handle matters governed by the Federal Rules of Civil Procedure or the Federal Rules of Bankruptcy Procedure, the use of a Subpoena under those Rules is a valuable, and often overlooked, tool to gather information related to a contested case. The purpose of this article is to provide an overview of Rules governing Subpoenas, Rule 45 in Federal District Court and Rule 9016 in Bankruptcy Court (which adopts Rule 45), including requirements of service and methods to quash or object to the same.
Under the Rules, a Subpoena can be used to command a person to: attend and testify; produce designated documents, electronically stored information or tangible things in that person’s possession, custody, or control; or permit the inspection of premises at a specific time and place. Fed. R. Civ. P 45(a)(1)(iii). Any Subpoena requires that the Court and case name be identified, and the action requested by the receiving party must be disclosed – containing the exact text of Rule 45(e) and (d). Fed. R. Civ. P. 45(a)(1)(i)-(iv).
Further, a Subpoena must be issued by the Court in which the underlying action is pending and it can be signed by either the clerk of that Court, or an attorney admitted to practice in that Court. If the Subpoena is to produce documents or tangible things, a notice and copy of the Subpoena must be served on each party. Fed. R. Civ. P. 45(a)(1)-(4). Failure to adhere to these requirements could deem the Subpoena ineffective.
Service of a Subpoena can be accomplished anywhere in the United States by any person who is at least 18 years old and not a party. Fed. R. Civ. P. 45(b)(1) and (2). The Subpoena must be delivered to the person and, if attendance is required, must be accompanied by appearance and mileage fees. Fed R. Civ. P. 45(b)(1).
It is important to keep in mind that you must consider the impact that serving a Subpoena of an individual or potentially face sanctions. A party or attorney responsible for serving a Subpoena must “take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena” and the Court “where compliance is required must enforce this duty and impose an appropriate sanction – which may include lost earnings and reasonable attorney’s fees – on a party or attorney who fails to comply.” Fed. R. Civ. P. 45(d)(1). Practitioners must be mindful of the time that a Subpoena gives an individual to respond and the breadth and necessity of the information requested.
The Federal Rules give an individual the ability to move to quash or modify a Subpoena. Fed. R. Civ. P. 45(d)(3). Specifically, the Rule requires a Court to quash or modify a Subpoena that:
- fails to allow a reasonable time to comply;
- requires a person to comply beyond the geographical limits specified in Rule 45(c);
- requires disclosure of privileged or other protected matter, if no exception or waiver applies;
- or subjects a person to undue burden.
The Rule permits, but does not require, a Court to quash or modify a Subpoena when the Subpoena requires disclosing a trade secret or other confidential research, development, or commercial information; or disclosing an unretained expert’s opinion or information that does not describe specific occurrences in dispute and results from the expert’s study that was not requested by a party. Fed. R. Civ. P. 45(d)(3)(B).
Further, if a Subpoena only requires documents, and not an appearance, the person receiving the Subpoena may serve an objection on the serving attorney before the time specified for compliance, or 14 days after the Subpoena is served. Fed. R. Civ. P. 45. If an objection is made, the serving party may file a motion with the Court for an order compelling the requested production or inspection. However, these acts may be required only as directed in the order, and the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance. Fed. R. Civ. P. (d)(2)(B)(i)(ii).
Moreover, the Court for the district where compliance is required may hold in contempt a person who, having been properly served, fails without adequate excuse to obey the Subpoena or an order related to it. Fed. R. Civ. P. 45(g). A few examples of adequate excuses not to respond to a Subpoena, as held by the Courts, include improper service, the requirement of production of privileged information, and/or not providing adequate time for response.
Subpoenas are a valuable tool to obtain information related to a case. When used properly, the collection of information from third parties, through document request or oral testimony, can be the difference between success and failure in a contested matter. Typically, information obtained through a non-interested third party is more reliable and can lead to a favorable result either at trial or an early settlement. For that reason, any practitioner in a contested matter should consider serving third-party Subpoenas in their initial discovery plan just as they would consider serving discovery requests on the actual parties in a case.