What Is FRCP Rule 45? A Reference Guide

  • Will Pfeifer
  • June 22, 2021

The U.S. district court system follows a strict code of conduct called the Federal Rules of Civil Procedure (FRCP). This post provides a brief overview of the FRCP and why it matters, and it also includes an examination of FRCP rule 45, one subsection of the code that governs subpoenas.

Congress established the FRCP in 1938 to unify the U.S. federal court system. Up until that point, federal courts followed different rules and procedures, which made enforcing federal laws challenging.

Since its inception in 1938, the FRCP went through several amendments. However, it remains one of the most important documents in the U.S. court system. In addition to the federal level, many state and local courts also follow the FRCP model.

What Is Rule 45 of the FRCP?

The FRCP includes a number of rules designed to bring clarity to legal processes. For example, FRCP rule 45 explains how parties should issue and respond to subpoenas. If you’re new to the term, courts issue subpoenas to compel witness testimonies or to produce evidence during a court case.

It’s important to understand how a subpoena works and the protocol for responding to one in case you’re on the receiving end of one of them.

FRCP Rule 45: Subpoena 

Section (A) sets general requirements for subpoenas. It basically says that a subpoena must include information about the court from where it originated, as well as the title of the action and its civil action number. 

Further, subpoenas must command each person who receives one to attend and testify, permit the inspection of a particular premises, or produce designated documents, electronically stored information (ESI), or tangible objects.

Section (B) says that a subpoena commanding attendance at a deposition must state the method for recording the testimony, while section (C) provides the option for combining or separating a command to produce or permit inspection. What’s more, the rule says that a subpoena may specify the form or forms for producing ESI. That being the case, eDiscovery professionals should take note of this part in particular. 

Section (D) explains how a subpoena command requires the responding person to permit inspection, copying, testing, or sampling of materials. A subpoena must also be issued from the court where the action is pending. And the clerk has to issue a subpoena to a party who requests it.

There is also an important distinction about timing. If someone issues a subpoena before trial, then each party must receive a notice. 

Rule 45 Section (b): Service 

This section provides guidelines for serving subpoenas. 

Section (1) says that any person who is at least 18 years old and not a party may serve a subpoena. It requires delivering a copy to the person in question and providing fees for one day’s attendance and mileage if they need to travel to get to court. 

Section (2) says that a subpoena may be served at any place in the United States, while section (3) outlines issuing and serving a subpoena to a U.S. national or resident in a foreign country (see 28 U.S.C. §1783). Section (4) offers guidance for proving and certifying service. 

Rule 45 Section (c): Place of Compliance 

This section explains where a subpoena can be given.

For example, a subpoena can only take place within 100 miles of where the person resides, their place of employment, or where they regularly conduct business in person. Or, it can take place within that person’s state if the person is a party’s officer, or if the person is commanded to attend a trial and wouldn’t incur substantial expense.

Rule 45 Section (d): Protecting a Person Subject to a Subpoena 

Under section (d), an issuing party must avoid imposing undue burden or expense on the person getting served. Also, the person getting served doesn’t have to appear in person at the place of production unless commanded to.

Section (B) covers objections and says that any person getting served may object to physical subpoenas or to producing ESI. This section also sets a time frame for issuing objections. 

There are also guidelines for quashing or modifying a subpoena. Additionally, it includes guidelines for court-ordered appearances and productions under certain conditions.

Rule 45 Section (e): Duties in Responding to a Subpoena

This section covers producing documents and ESI. In an age where there’s more digital data than ever before, this is an increasingly important section. 

A person responding to a subpoena must produce documents the way they appear in the ordinary course of business. Otherwise, they must label and organize them to correspond to the categories in the demand. If a subpoena doesn’t specify a form for producing ESI, the responding party has to produce it in a form it’s ordinarily maintained in. The responding party also doesn’t need to produce the same ESI in more than one form. 

Section (D) provides guidance for inaccessible ESI, while section (2) explains rules for withholding subpoenaed information that’s privileged or protected. 

Rule 45 Section (f): Transferring a Subpoena-Related Motion

In the event where compliance is required but the court didn’t issue a subpoena, it can transfer a motion under the rule to the issuing court if the person finds exceptional circumstances. 

Rule 45 Section (g): Contempt 

This part is important. Very simply, it says there are consequences for failing to respond to a subpoena. In short, a court has the power to hold a person in contempt for failing to obey a subpoena or an order related to it. This could result in fines, penalties, and even imprisonment.

How Venio Systems Streamlines Requests 

Suffice it to say that court proceedings move very quickly. Legal teams often have limited time to produce ESI and respond to requests and subpoenas.

To streamline the process, a growing number of legal teams are turning to cloud-based platforms like Venio Cloud, which streamline ESI management end to end in one powerful platform. 

Venio Cloud is a purpose-built platform for eDiscovery, or the process of collecting, securing, managing, preparing, and exchanging ESI during court. In the digital age, more and more law firms are turning to eDiscovery platforms because they deliver these transformative benefits. 

Faster Response Times

Venio offers efficient end-to-end eDiscovery, providing one platform that brings together ESI processing, review, and production. It’s much easier to find the digital information you’re looking for because everything’s in one place.

Rapid Scalability 

Legal teams need to be able to quickly scale and take on large datasets. Venio Cloud offers rapid scalability, enabling law firms to efficiently store and process large files with millions of records. 

Easy Data Culling

Datasets often require culling, or trimming, before legal teams export them during a case. For example, a defense team may ask to see emails during a particular period—but not every single email in a particular system.

Venio Cloud automates data culling, enabling teams to rapidly sort through information, organize it, and preserve files for later use. 

Access Venio Cloud Today

Venio Cloud is an eDiscovery solution for legal eDiscovery professionals, created by eDiscovery professionals. It’s one of the most advanced eDiscovery products on the market, and more and more legal teams are trusting it to accelerate their eDiscovery efforts. 

Deploying Venio’s software leads to lower operational costs, faster response times, and easier management. Using Venio frees eDiscovery professionals to focus more on building cases and preparing data for court, instead of digging through back-end databases and manually compiling reports.

Begin your eDiscovery journey with Venio by requesting a free Venio Cloud demo today.

This post was written by Justin Reynolds. Justin is a freelance writer who enjoys telling stories about how technology, science, and creativity can help workers be more productive. In his spare time, he likes seeing or playing live music, hiking, and traveling.