The amendments to Rule 45 of the Federal Rules of Civil Procedure (FRCP) became effective on December 1, 2013. Under the amended rule, the court where the action is pending (the issuing court) must issue subpoenas (FRCP 45(a)(2)) and now has nation-wide subpoena power (FRCP 45(b)(2)). While subpoena-related motions are still heard in the court where compliance with the subpoena is required (the compliance court) (FRCP 45(d)(3)), a new section to the rule allows the compliance court to transfer a subpoena-related motion to the issuing court on a showing of "special circumstances" (FRCP 45(f)). Counsel making a subpoena-related motion should bear in mind three important changes under the amended rule:

Each of these issues is exemplified in a recent district court decision, Agincourt Gaming, LLC v. Zynga, Inc. (No. 2:14-cv-0708-RFB-NJK, (D. Nev. Aug. 15, 2014)). Zynga served Bally, a non-party corporation located in the District of Nevada, with a subpoena demanding compliance in Nevada for an action pending in the District of Delaware. Zynga also served four non-party individuals, located in the Northern District of California, with subpoenas demanding compliance in that district. Bally and the individuals moved to quash the subpoenas in the Nevada district court. Zynga argued that the court did not have jurisdiction to hear the individuals' motions and moved to transfer Bally's motion to the District of Delaware.

Applying the amended rule (even though the action was commenced before its effective date), the court ruled in Zynga's favor on both points. It held that it lacked jurisdiction to hear the individuals' motions because the compliance court for those subpoenas was the Northern District of California (, at *3-*4).

The court also found that special circumstances existed and transferred Bally's motion to the issuing court in Delaware. In so doing, the court applied a balancing test, weighing the burden of a transfer to the party responding to the subpoena against factors such as judicial economy, docket management and the potential for inconsistent rulings if the motion is not transferred. The court found that transfer would facilitate judicial economy and avoid inconsistent rulings because the issuing court had already ruled on issues similar to those raised in the motion to quash. It rejected as "speculative" Bally's arguments that transfer would be burdensome because the issuing court would require a personal appearance, especially given that Bally is a large corporation (, at *7-*8).

The Nevada District court's decision is consistent with other courts that have applied the amended FRCP 45. Counsel making a subpoena-related motion should keep the following practice points in mind.

In its order amending the rule, the Supreme Court noted that the amendments to FRCP 45 should apply to all pending proceedings "insofar as just and practicable" (see Wultz v. Bank of China, Ltd., No. 13-1282(RBW), , at *4 (D.D.C. May 30, 2014)). As a result, courts likely will apply FRCP 45 as amended irrespective of when the action was commenced or when the subpoenas were served (see FRCP 86; Wultz, , at *4).

Counsel must file any subpoena-related motion in the compliance court because only that court has jurisdiction to hear the motion (see Agincourt, , at *4).

Courts have found exceptional circumstances that warrant transferring a subpoena-related motion to the issuing court where the transfer would:

Counsel should also bear in mind that expense to the party responding to the subpoena as a result of a transfer is usually an insufficient reason to deny transfer, particularly where it is uncertain whether a transfer would increase costs at all (see Moon Mountain Farms, 301 F.R.D. at 430) or where the party is a large, national corporation (Agincourt, , at *8).

Practical Law has a variety of resources related to subpoenas in federal court, including: