Amendments to Federal Rule of Civil Procedure 45 that went into effect last December were designed to simplify and clarify the scope and mechanics of subpoenas issued under that rule. As several recent decisions from judges of the U.S. District Court for the Southern District of New York make clear, failure to observe even the most technical aspects of that rule can result in a subpoena being quashed, and the more substantive provisions may require parties to make important tactical decisions about how to present evidence at trial.
Nuts and Bolts
Starting in 1991, Rule 45 has required a party serving a pretrial subpoena seeking documents or tangible things to provide notice of the subpoena to all other parties. Since 2007, the rule has required that such notice be provided in advance of the subpoena being served. In practice, however, parties frequently have failed to provide notice of such subpoenas in advance, and sometimes have failed to provide notice at all. In order to highlight this requirement, which is designed to give other parties the opportunity to object to the subpoena or seek additional materials, the 2013 amendments break the notice requirement into a separate subsection, and contain the added requirement that the notice include a copy of the subpoena itself.1
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