LCJ Opposes Remote Testimony Proposal, Recommends New Rule 45 Protections

LCJ is urging the Advisory Committee on Civil Rules not to proceed with three FRCP 45 amendments under consideration: expanding the reach of subpoenas for remote testimony, loosening the rules for methods of service of subpoenas, and delaying or even eliminating the tendering of witness fees.

LCJ’s new Rules Suggestion explains why each of these ideas would cause harmful unintended consequences—and why, if adopted together, they could remake Rule 45 in a manner that renders the Rule’s purported protection of witnesses empty promises.

Instead of those amendments, LCJ is proposing three much-needed improvements to Rule 45 that would provide important protections: (1) a requirement that subpoena issuers take “reasonable steps” to protect private and confidential information concerning non-parties; (2) guidance to minimize the burdens of unnecessary privilege logging; and (3) reimbursement for document production expenses.