How to Handle Subpoenas Under Rule 45 of the Federal Rules of Civil Procedure

Experienced federal defense attorneys help clients in receipt of federal civil subpoenas

What Is a Subpoena and When Are They Used?

A subpoena is a court order requiring a party to either produce documents or appear in court. Government agencies use subpoenas in both civil and criminal investigations as an investigative tool, as well as to ensure a person’s appearance in court. Receiving a subpoena, especially when you don’t know its purpose, is alarming, to say the least. However, it is important to realize that getting a subpoena does not necessarily mean that you or your company is under investigation; the party issuing the subpoena may be merely requesting information pertaining to a case against another party. Regardless, complying with a properly issued subpoena is mandatory. Failure to comply with a subpoena request can result in civil or criminal sanctions.

At the law firm of Oberheiden, P.C., we represent individuals and organizations who find themselves in receipt of a subpoena. Our knowledgeable team of federal defense attorneys have extensive experience handling civil subpoenas, and can help you make sense of what’s being asked of you. With advanced knowledge of the procedural elements and requirements of subpoenas under Federal Rule of Civil Procedure 45, we can aptly determine if the subpoena was properly obtained and, if it was, work with you to meet your legal obligations. We are also experienced in challenging the issuance of overly broad, improperly served, or otherwise unenforceable subpoenas.

What a Party Needs to Prove to Obtain an Enforceable Subpoena

Subpoenas are powerful tools, and, when challenged, courts must scrutinize subpoenas to ensure that they comply with the legal requirements. Specifically, Federal Rule of Civil Procedure 45 governs the issuance of subpoenas. An enforceable subpoena in federal civil litigation must contain the following elements:

  • The name of the court issuing the subpoena;
  • The title of the action and its civil-action number;
  • The name of the person or organization who is the target of the subpoena;
  • The text of Federal Rule of Civil Procedure 45, explaining the recipient’s rights and obligations;
  • The time and place the recipient is required to produce the documents or appear in person;
  • A description of the requested evidence covered under the subpoena (for subpoenas seeking physical evidence); and
  • The manner in which testimony will be recorded (for subpoenas seeking witness testimony).

Subpoenas must be issued by an attorney licensed to practice law in the jurisdiction where the underlying action is going to be heard. Once a party issues a subpoena, they must effectuate proper service for it to be enforceable. The service requirements when it comes to federal civil litigation subpoenas are strictly construed, and improper service can invalidate a subpoena.

Service of a Subpoena Under Federal Rule of Civil Procedure 45

Proper service is a crucial element of issuing an enforceable subpoena. This is not only a procedural requirement designed to give the recipient notice, but it also involves the more complex issue of a court’s jurisdiction over a person or party. Under Federal Rule of Civil Procedure 45, any party who is at least 18 years old and not a party to the lawsuit can serve a subpoena anywhere in the United States. While it’s possible that a government agency would improperly serve a subpoena, in practice, this is rare.

Challenges to a Federal Civil Subpoena

Once served with a subpoena, a party must comply. However, there are certain circumstances in which a court will quash or modify a subpoena. If you’ve been issued a subpoena, it is crucial to understand the following ways of defending against the enforcement of the subpoena; otherwise, you must comply with whatever it demands. Federal Rule of Civil Procedure 45 provides four means by which a party can modify or quash a subpoena.

The Subpoena Fails to Allow a Reasonable Amount of Time for Compliance

Federal Rule of Civil Procedure 45 does not provide a minimum time that a person has to respond to a subpoena. Largely, the timeframe is up to the issuing party. However, 30 days is generally seen as a reasonable amount of time. Of course, under certain circumstances, a shorter period of time could be allowable. Alternatively, subpoenas containing extensive demands may require the issuing party to allow more time for the subject to gather and prepare the documents.

The Subpoena Requires the Subject Travel Outside the Permitted Range

While a subpoena can be served anywhere in the United States, Federal Rule of Civil Procedure 45 provides geographical limits when it comes to how far the subject must travel to comply with the subpoena. For subpoenas seeking testimony, the place of compliance (where the testimony will be taken) must be “within 100 miles of where the person resides, is employed, or regularly transacts business in person,” or within the state that they live.

For subpoenas seeking the production of documents, the geographical area is slightly smaller in that it can only necessitate travel “within 100 miles of where the person resides, is employed, or regularly transacts business in person.”

When measuring the 100-mile distance, courts use the straight-line method (“as the crow flies”) and does not consider the distance actually traveled on the road.

The Subpoena Requires the Disclosure of Privileged or Confidential Information

Federal Rule of Civil Procedure 45 allows a court to quash a subpoena that requires a party to produce certain sensitive information. The examples provided in Rule 45 include trade secrets and confidential research, development, or commercial information. A party can also challenge a subpoena seeking the opinions of an unretained expert.

However, to the extent that a party claims disclosure would violate the work-product rule, the receiving party must clearly state their objection and, without getting into the contents of the material sought, provide enough information to the court to allow it to make the necessary determination.

The Subpoena Imposes an Undue Burden on the Subject

While complying with any subpoena can be labor-intensive, Federal Rule of Civil Procedure 45 prevents the issuing party from imposing an “undue burden” on the subject of the subpoena. This most often arises in the context of “document only” subpoenas in which the issuing party is not requiring the subject’s presence.

Often, parties issuing a subpoena include intentionally broad language, covering an enormous number of documents. In part, this may be because the issuing party does not know exactly what they are looking for, and is going on a “fishing expedition.” Alternatively, some parties issue overly-broad subpoenas as part of a larger strategy to frustrate. In any event, just because a subpoena contains broad language does not necessarily mean that the recipient must delve into their records and produce every document that could possibly be covered by the subpoena. Parties can challenge the overbreadth of a subpoena by claiming that it imposes an undue burden.

What to Do if You Receive a Subpoena

If you receive a subpoena, the first step is to reach out to a dedicated federal defense attorney. Your attorney can evaluate whether the subpoena is enforceable, and help determine what, if any, challenges may be appropriate. If the subpoena is valid and enforceable, the next step is to determine its scope. This is more of an art than a science. On one hand, you’ll need to comply with the demands in the subpoena. However, on the other hand, you do not want to hand over any evidence that could lead to further scrutiny. At the law firm of Oberheiden, P.C., our dedicated team of federal defense lawyers has extensive experience helping clients defend against and comply with federal civil subpoenas.

Frequently Asked Questions

Do I need to comply with a subpoena?

 

Yes, if you received a subpoena, you will need to comply. However, there are various ways of challenging a subpoena, and you may be able to ask the court to quash or modify the subpoena. Common challenges to a subpoena include that it fails to allow you reasonable time to comply, requires you to comply beyond the geographical limits allowed by law, requires you to disclose privileged or protected material, or subjects you to undue burden.

What happens if I ignore a subpoena?

 

If you ignore a subpoena, you could face a civil contempt proceeding. However, non-compliance will not automatically result in a finding of contempt; the court must hold a hearing before holding you in contempt. If you are found in contempt, you could face fines and, less frequently, incarceration. However, the purpose of a civil contempt proceeding is not to punish the person who does not comply, but instead to coerce them into compliance. Thus, as soon as you agree to comply, the sanctions will generally be lifted.


Put our highly experienced team on your side

Dr. Nick Oberheiden
Dr. Nick Oberheiden

Founder

Attorney-at-Law

John W. Sellers
John W. Sellers

Former Senior Trial Attorney
U.S. Department of Justice

Local Counsel

Joanne Fine DeLena
Joanne Fine DeLena

Former Assistant U.S. Attorney

Local Counsel

Joe Brown
Joe Brown

Former U.S. Attorney & Former District Attorney

Local Trial & Defense Counsel

Amanda Marshall
Amanda Marshall

Former U.S. Attorney

Local Counsel

Aaron L. Wiley
Aaron L. Wiley

Former Federal Prosecutor

Local Counsel

Roger Bach
Roger Bach

Former Special Agent (OIG)

Michael Koslow
Michael Koslow

Former Supervisory Special Agent (FBI)

Chris Quick
Chris Quick

Former Special Agent (FBI & IRS-CI)

Kevin M. Sheridan
Kevin M. Sheridan

Former Special Agent (FBI)

Ray Yuen
Ray Yuen

Former Supervisory Special Agent (FBI)

Dennis A. Wichern
Dennis A. Wichern

Former Special Agent-in-Charge (DEA)

Contact the FRCP Subpoena Defense Lawyers at Oberheiden, P.C. for Immediate Assistance

If you have been served with a federal subpoena, we encourage you to speak with one of our senior federal civil litigation defense attorneys. Our team consists of former prosecutors, and former high-ranking officials across a variety of government organizations. We have extensive knowledge of Federal Rule of Civil Procedure 45, and its limits. For a complimentary case assessment at Oberheiden P.C., call 888-680-1745 or tell us how we can reach you online now. We serve clients nationwide and are available 24/7.

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