Moore's Federal Practice, Chapter 45 Subpoena, Including 2013 Rule Amendments
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• Subpoenas must be issued from the court where the action is pending, not from the court in which the subpoena is served. See Rule 45(a)(2).
• A subpoena "may be served any place within the United States." See Rule 45(b)(2). Any lawyer authorized to practice in the issuing court may issue and sign the subpoena anywhere in the country. See Rule 45(a)(3).
• If the subpoena is for a deposition or a hearing (not a trial), a nonparty witness can be compelled to travel only within 100 miles of where he or she resides, is employed, or regularly transacts business in person. See Rule 45(c)(1)(A). A nonparty subpoenaed for trial can be compelled to travel anywhere within his or her state of residence, as long as doing so does not entail "substantial expense." See Rule 45(c)(1)(B)(ii).
• If the subpoena is for the testimony of a party or party's officer, that person may be compelled to travel anywhere within the 100-mile limit or within his or her state of residence, subject to the same "substantial expense" limitation. This new provision resolves a split of authority created by In re Vioxx Products Liability Litigation, 438 F. Supp. 2d 664 (E.D. La. 2006), where a court required a party officer to travel more than 100 miles to attend trial. See Rule 45(c)(1)(B).
• The court where compliance is required (the "compliance court"), not the issuing court, ordinarily hears and decides any motion to quash or modify a subpoena. See Rule 45(d)(3)(B).
• The compliance court may transfer subpoena-related motions to the issuing court if the person subject to the subpoena consents or the compliance court finds "exceptional circumstances." After transfer, the lawyer for the nonparty witness is automatically admitted to the issuing court for the purposes of filing papers and appearing on the motion. See Rule 45(f).
• Both the compliance court and, after transfer, the issuing court may hold in contempt a person who fails to obey a served subpoena. See Rule 45(g).
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