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Rule 45 of the Federal Rules of Civil Procedure (FRCP 45, for short) sets out the procedure for the issue of subpoenas in federal court. It includes provisions for what a subpoena must contain, how it is to be served, who can issue one, and what steps a person subject to a subpoena can take to avoid or quash the subpoena. Federal Rule of Civil Procedure 45 also contains special provisions with respect to the production of electronically stored information (ESI).

Continue reading below to learn more about how FRCP 45 (Rule 45) relates to ESI and the steps you can take if you receive one.

2006 Amendments to FRCP 45

In 2006, FRCP 45 was amended, along with much of the rest of the Federal Rules of Civil Procedure, to clarify how orders to produce electronically stored information should be handled. A number of specific provisions were amended or added:

-Rule 45(a)(1)(C) was amended to recognize that ESI may be sought by a subpoena issued pursuant to FRCP 45.

Rule 45(a)(1) was amended to allow the issuer of a subpoena to require that the recipient produce ESI in a particular form or forms.

Rule 45(d)(1)(B) was amended to require the recipient of a subpoena under FRCP 45 to produce ESI in the form in which it is usually maintained or in a form that is reasonably usable (if the form isn’t otherwise specified).

Succinctly, the amendments to FRCP 45 in 2006 made it possible for the issuer of a subpoena to require someone to attend and produce ESI in a form of the issuer’s choosing.

Of course, the powers of a subpoena issuer are not infinite under FRCP 45. The section contains protections for the recipients of these subpoenas that allow them to avoid undue hardships, burdens, and costs.

FRCP 45 Protections

The protections provided to subpoenaed individuals and companies are actually quite broad.

Rule 45(d)(1)

This section requires the issuer of a subpoena to turn their mind to avoiding “undue burden or expense” on an individual who is subpoenaed and allows the subpoenaed person to recover costs and lost earnings where those are incurred as a result of complying with or quashing the subpoena.

Rule 45(d)(2)(B) Objections

This rule allows the subject of a subpoena required to produce ESI to file a timely objection to producing that information.

Rule 45(d)(3) Modification or Quashing

This rule allows a subpoenaed party to move to quash or modify a subpoena in a variety of circumstances.

CASE NOTE:

In Miceli v. Mehr, the plaintiff sought discovery from the defendant’s previously retained law firm. The subpoenaed law firm brought a motion to quash the subpoena, arguing that it faced an undue burden in supplying the sought information. The court, relying on the proportionality factors found in Rule 26, quashed the subpoena. It held that much of the information was irrelevant and, even where it wasn’t, the burden placed on the law firm was out of proportion to its relevance.

Quashing a subpoena is the last resort for a court. It will only do so if, after balancing all of the relevant factors, the proposed benefits of the information sought are heavily outweighed by the burden that will be borne by the subpoenaed party.

So You’ve Received an FRCP 45 Subpoena

If you’ve been served a subpoena pursuant to FRCP 45 you should consult with a qualified attorney. The time you have to file an objection to the subpoena is limited to, at most, 14 days, and motions to quash must be filed in a timely manner as well.

You’ll need to consider the information sought by the subpoena and what sort of burden would be placed on you or your company if you had to produce it. You’ll also need to consider:

-Does the subpoena provide you with enough time to find and produce the information sought in the form that is requested?

-What would it cost to find and produce the information?

-Would you incur any indirect costs as a result of finding and producing the information?

-Is any of the material sought a trade secret or subject to any kind of privilege?

-Do you have any financial connection to the parties to the lawsuit?

-Does the subpoena require you to attend court and, if it does, can you reasonably comply with its attendance requirements?

Your attorney will help you in determining if and how you should file an objection to the subpoena, bring a motion to quash, or simply comply with the order. The important thing to remember is to act on the subpoena as soon as you’re served. Timelines are short and you’ll be expected to act quickly, regardless of what you decide.

Final Thoughts

FRCP 45 contains a number of rules and provisions that attempt to balance a party’s need for information with the burdens placed on non-parties when they’re ordered to supply information. If you receive a subpoena pursuant to FRCP 45 that requires you to produce ESI, give careful thought, and seek legal advice with respect, to how you want to proceed. Producing ESI can be a significant undertaking and you’ll want to tread carefully.

 

Read more on discovery law and sanctions, here:

FRCP 26: The Scope of Discovery

Rule 33: Can You Refuse to Answer Interrogatories?

About the Author:

Steven Toews

Steven Toews

Steven Towes is a former prosecutor and defense attorney, who now resides with his wife and labradoodle in Bermuda and offers legal and business writing and consulting services. Tweet him @steventoews.

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