LCJ Urges Three Critical Amendments to Rule 45

LCJ filed a new Comment to the Federal Advisory Committee on Civil Rules which argues that Federal Rule of Civil Procedure 45 suffers from serious deficiencies that demand the Advisory Committee’s action. You can read the Comment here. The Comment was published on October 10th in conjunction with the Advisory Committee’s public comment period on possible amendments to Rule 45.

LCJ identifies three major deficiencies in Rule 45 and recommends amendments to address them:

(1) Lack of a clear requirement to pay non-parties’ costs to produce documents. Rule 45 rarely makes non-parties whole. LCJ urges an amendment to Rule 45(d)(2)(B)(ii) to require reimbursement to non-parties for reasonable costs resulting from production of ESI, documents, and tangible things, absent good cause.

(2) Absence of guidance for handling personal and confidential information belonging to subpoena recipients and data subjects. LCJ advocates for an amendment to Rule 45 to incorporate clear standards for handling privacy and cybersecurity and defining issuing parties’ responsibilities to non-parties—both the non-parties who are directly subpoenaed and those whose data is the subject of a subpoena served on someone else.

(3) Omission of any direction for avoiding the same costly and burdensome privilege logging requirements that prompted recent amendments to Rules 16 and 26. LCJ highlights the need for an amendment to Rule 45 to provide guidance about privilege logs to non-parties facing subpoenas, including guidance that document-by-document privilege logging is not required. The Rule should define the expenses of document-by-document logging as a “significant expense” compensable by the subpoena issuer.

LCJ Urges Rejection of the Proposed Changes to the Methods of Service

LCJ’s Comment also urges the Advisory Committee on Civil Rules not to adopt proposed amendment language on the methods of service of subpoenas. LCJ argues that the current methods of serving subpoenas that Rule 45 permits work well; the exceptions are rare.

The two “problem cases” cited in support of the preliminary draft rule involve “witnesses who seem to be ducking service.” The proposed Committee Note correctly acknowledges that “service of a subpoena usually does not present problems,” reflecting its Discovery Subcommittee’s conclusion last year that, “it seems that service of subpoenas has not presented great difficulties with frequency.” There is also scant, if any, evidence that Rule 45’s language about tendering fees causes problems with the service of subpoenas.