Analysis of Amendments to Federal Rules of Civil Procedure 45 and 37

The Supreme Court of the United States has made significant amendments to Federal Rule of Civil Procedure 45, which became effective on December 1, 2013. Rule 45 governs the form, issuance, service, enforcement of, compliance with, and protection from, subpoenas in federal court. Due to the amendments to Rule 45, the Supreme Court has also made less extensive amendments to Rule 37, which addresses parties’ failure to cooperate in discovery and sanctions for such failures.

There are significant changes to Rule 45, a number of which are designed to streamline the process of issuing and serving subpoenas. However, the amendments also, among other changes, modify the procedures for bringing motions related to subpoenas and resolve conflicting case law with respect to the subpoena power of the federal courts over parties and their officers for testimony at trial.

Foley prepared a chart, available below, to assist those who find themselves involved with the subpoena process in civil cases in federal court — whether as a party or a subpoenaed person or entity — to navigate the changes by not only identifying the most significant provisions and changes, but also explaining the practical and strategic implications of these changes.