Amendments to FRCP 45 Enacted

Posted on February 25, 2014 03:00 by Michael P. Lowry

On December 1, 2013 an amended FRCP 45 went into effect.  Why did it require amendment?  “Current Rule 45 creates what the Advisory Committee came to call a ‘three-ring circus’ of challenges for the lawyer seeking to use a subpoena.”  Report of the Civil Rules Advisory Committee, May 8, 2012 (page 80 of the link).  Those with federal cases need to be aware of the changes this post attempts to address.  As always, I encourage you to actually read the rule yourself.

To help put these changes in context, consider this hypothetical.  Assume I am defending a car manufacturer against a product case involving one of their fine automobiles cars.  The case is venued in the District of Nevada.  I want to inspect what remains of the car; envision the car inspection scene from Fight Club.  The purportedly defective car, however, is at a junk yard, partially covered by a tattered blue tarp storage facility, where it is protected from the elements, located in the Eastern District of Michigan.  The storage facility hates lawyers will not permit an inspection without a subpoena.

Which Court Issues the Subpoena?

Under the old rule, the court that could issue the subpoena varied.  A subpoena to appear for a hearing or trial issued from the court where the trial was to occur, but a deposition subpoena issued from the court for the district that encompassed the deposition location and a subpoena just for production or inspection was issued from the court for the district where that production or inspection was to occur.  FRCP 45(a)(2)(A)-(C) (2012).  Applied here, the trial would be in Nevada, but requires an inspection in the Eastern District of Michigan and, for good measure, a deposition in the Northern District of Texas.  Each would require a subpoena from a different court.  Fun times.

The new rule eliminates this game.  “A subpoena must issue from the court where the action is pending.”  FRCP 45(a)(2)(A) (2013).  Applied to the car inspection, the District of Nevada issues the subpoena.  This change spawned many others.

What Does the Caption Look Like?

The old rule permitted multiple courts to issue subpoenas in a case, although only one was actually hearing the case.  Therefore the subpoena needed to state not only the court that issued it, but also the court where the case was actually pending.  FRCP 45(a)(1)(a)(i)-(ii) (2012).  Under the old rule, my subpoena to the storage facility would have been issued from the Eastern District of Michigan, but would have included a slew of information about the case in the District of Nevada.

As the new rule authorizes only the court hearing the case to issue subpoenas, FRCP 45(a)(1)(a)(i)-(ii) were revised to simply require the subpoena identify the issuing court, the caption and case number.  Applied to my car inspection, the same caption I am using for other documents should be sufficient for the subpoena.

Which Attorney May Issue a Subpoena?

Given the possibility of multiple courts in different districts issuing subpoenas, the old rule permitted attorneys to issue subpoenas if the attorney is admitted to practice before the issuing court, wherever that might be.  FRCP 45(a)(3)(A)-(B) (2012).  For my car inspection, if I could not get the clerk to issue the subpoena, the old rule meant I would need an attorney admitted to practice in the Eastern District of Michigan to sign it.

Again, given that now only the court where the action is pending may issue the subpoena, this requirement was also modified.  “An attorney also may issue and sign a subpoena if the attorney is authorized to practice in the issuing court.”  FRCP 45(a)(3) (2013).  Now I can issue the subpoena through the District of Nevada and, since I am admitted to practice there, I can sign it.

Who Gets Notice of the Subpoena?

In Nevada state courts, there are frequently problems where a party issues a subpoena but does not provide notice of that subpoena to the other parties.  This is apparently not an isolated problem.

As it examined Rule 45 issues, the Committee was repeatedly informed that this notice provision is frequently not obeyed. Parties often obtain documents by subpoena without notifying other parties that the subpoena has been served. The result can be that there are serious problems at or before trial when “surprise” documents emerge and arguments may be made that they should not be admissible or that further discovery is warranted.

Report of the Civil Rules Advisory Committee, May 8, 2012 (page 83 of the link).  The committee considered it such a problem that it amended the rule.

The notice provision was previously buried in FRCP 45(b)(1) (2012).  “If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served, a notice must be served on each party.”  The committee elected to emphasize this requirement by relocating and slightly modifying it.  “If the subpoena commands the production of documents, electronically stored information, or tangible things or the inspection of premises before trial, then before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.”  FRCP 45(a)(4) (2013). Before serving a federal subpoena, a notice containing a copy of the subpoena must be itself served on the parties.  This gives them an opportunity to potentially object or serve their own subpoenas.

How does this impact my site inspection hypothetical?  I must give notice to the other parties of the subpoena before I serve it on the storage facility.  How much notice is open to interpretation depending upon the circumstances.

Where Can I Serve a Subpoena?

The old rule imposed a variety of potential geographic restrictions upon serving a subpoena and litigation about whether a person was more than 100 miles from the courthouse.  The fix?  “A subpoena may be served at any place within the United States.”  FRCP 45(b)(2) (2013).  This means I can issue the subpoena from the District of Nevada for a site inspection to occur in the Eastern District of Michigan and then serve that subpoena in the Eastern District of Michigan.

Location of Compliance

The old rule had various, scattered restrictions as to the location the subpoena could specify for compliance.  The committee was also concerned because some courts had determined a subpoena could still compel a person to attend trial even when the subpoena violated the geographic limits in effect.  See In re Vioxx Products Liability Litigation, 438 F.Supp.2d 664 (E.D. La. 2006).

The fix was to create FRCP 45(c).  “It collects the various provisions on where compliance can be required and simplifies them.”  Committee Notes on Rules – 2013 Amendment.  The committee also explicitly rejected In re Vioxx Products Liability Litigation’s interpretation of the geographic restrictions.  In other words, a subpoena can be served anywhere, but it does not mean it is enforceable if it requires compliance beyond the geographic limits of FRCP 45(c).

This change has little impact upon my hypothetical because the subpoena is being issued for a site inspection.  The changes primarily affect subpoenas for other discovery or trial purposes.  I could not, for example, serve a subpoena on a witness in Michigan to attend a trial in Nevada.

Which Court Enforces the Subpoena?

If the storage facility balks at the subpoena, where do I file the motion to compel?  The old rule required the motion to quash to be heard in the district for compliance, here the Eastern District of Michigan.  The advisory committee acknowledged authority holding there are some instances where it might be better for the court hearing the case (Nevada) to hear the motion to quash than the enforcing court (Michigan).  Why?  The issuing court is hearing the whole case and may have a better handle on the situation.

The committee decided to create FRCP 45(f) to address this scenario.  Applied to my hypothetical, the Eastern District of Michigan “may transfer a motion under this rule to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.”  Id.  The drafter’s notes make quite clear, however, that the protection of the person subject to subpoena is to be given significant consideration.

Who Can Hold the Person Subject to Subpoena in Contempt?

FRCP 45(e) formerly stated contempt power for compliance was only vested in the court that issued the subpoena.  The new rule permits transfer of subpoena related motions, so FRCP 45(g) specifies both the issuing and enforcing court possess contempt power.  Under my hypothetical, if the storage facility fails to comply with the subpoena, both the Eastern District of Michigan and the District of Nevada possess contempt power.

This blog was originally posted on Posted on January 6, 2014 on Michael P. Lowry's "Compelling Discovery" blog. Click here to read the original entry. 

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I do not follow celebrity news gossip, but even I heard that Paula Deen was recently deposed and some are not happy about her testimony.  CNN put the transcript on its website.  The CNN link may not last, but federal court filings do.  If someday the CNN link fails, the deposition was publicly filed as document 197-1 in case 12-cv-00139.  The case may be accessed via PACER for the Southern District of Georgia.  To be absolutely clear, I have not read the 149 page transcript or any of the filings in this case.

If I have not read the deposition, why am I posting about it?  It is certainly not to add my voice to the celebrity gossip firestorm.  Instead, the point of this post is to discuss a few issues that can arise when representing public figure clients.  Paula Deen’s current case prominently highlights a few them.  When a request to depose your public figure client arrives, what are some of your options to help avoid the firestorm currently surrounding Paula Deen?

Seek a Protective Order

NRCP 26(c) authorizes a court to issue a protective order, in certain circumstances, to govern discovery.  If a litigant is a well-known public figure, one litigation strategy may be to leverage that profile against her to force a favorable resolution.  I am not saying this occurred to Paula Deen.  If you are defending the public figure, it may be prudent to seek a protective order before discovery begins.  NRCP 26(c) permits “for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense.”

But wait, court documents are public records so discovery materials are presumptively public!  Probably not.  In Seattle Times Co. v. Rhinehart, 467 U.S. 20 (1984) a religious organization sued a newspaper.  The organization was concerned the paper would publish information it learned in discovery and sought a protective order.  The newspaper appealed and argued the order violated its First Amendment rights.  The Supreme Court of the United States disagreed and, in short, stated there may be constitutionally permissible reasons for a court to restrain the use of information gathered via the discovery process.  The debate about this topic did not end in 1984.  The legal community continues debating the extent to which information gathered via court-permitted discovery is or is not public.   See Richard L. Marcus, A Modest Proposal: Recognizing (At Last) that the Federal Rules No Not Declare That Discovery is Presumptively Public, 81 Chi.-Kent L. Rev. 33 (2006).

Where representing a public figure, a protective order is one way to seek to focus the case and avoid a situation like Paula Deen is enduring.

Object to Apex Depositions

The Paula Deen lawsuit reportedly involved a restaurant in which she had some involvement.  I do not know what level of involvement Paula Deen had in the daily operations of the restaurant in her lawsuit, but, for an example, consider Wolfgang Puck.  Here in Las Vegas, it sometimes feels like Wolfgang Puck affiliated restaurants are nearly as ubiquitous as Starbucks, but typically with far better food.  Obviously he cannot be involved in the daily operations of each of these restaurants and his other businesses.  But if a customer files a run of the mill personal injury lawsuit against the restaurant, what is to stop the customer from then deposing Wolfgang Puck himself?

The response is to move for a protective order and rely upon the apex doctrine.  Why?

Under the “apex doctrine,” courts sometimes grant protective orders barring the depositions of high-level corporate officers or managers who are unlikely to have personal knowledge of the facts sought by the deposing party. If a deponent is a high-level corporate officer who certifies that he or she has no personal knowledge of the facts, the court may grant a protective order requiring the deposing party to first seek discovery through less intrusive methods, e.g., from lower level employees who are more likely to have direct knowledge.

6-26 Moore’s Federal Practice – Civil § 26.105.  The concept has been discussed locally in a case that resulted in a blog post.  Luangisa v. Interface Operations, 2011 U.S. Dist. LEXIS 139700, 2011 WL 6029880 (D. Nev. 2011).  Remember, it is difficult to qualify for an apex exception to deposition.

I do not know if Paula Deen would have qualified for the apex exception, but it is another tool to help control discovery for cases involving public figures.

At the Deposition: Do What You Can Within the Rules to Defend Your Client
What can you do to defend your public figure client if she is deposed?  First, keep your head.  I can appreciate how representing a public figure might create certain expectations and pressure. I can only urge you not to jettison everything you learned and practiced leading up to this moment, walk into a deposition and be a baddie.  This blog has already discussed what happens when good lawyers act out of character and the ramifications of those actions.  Public figure client or not, the rules still apply.

Second, prepare your client.  If the client is a public figure that is probably easier said than done.  I can only speculate that the lawyers for Lil Wayne and Lady Gaga did not prep them to act as they once did.  The public figure deponent must be ready, like any other client, to present their testimony in the best manner possible.

Third, although you as the defending attorney are a potted plant and there is little you can do, control what you can.  Assert appropriate objections because, if your client is well prepared, she will remember an objection means there may be something wrong about the question which must be addressed.  Take breaks when needed.  It does not look good, especially in a video recorded deposition, to take a break in the middle of key testimony, or multiple breaks in the space of a few questions, but if your client is melting down its all you can do.  Get the client outside the room, calm her down and try to restore sanity to the situation. Be wary however, as in some jurisdictions there is no attorney-client privilege during deposition breaks.

At the Deposition: Terminate and Move for a Protective Order, if Necessary

If everything else fails and the deposition questioning is simply out of line and control, consider terminating and moving for a protective order. I generally consider this the nuclear option but, as sadly documented by various posts on this blog, sometimes it cannot be avoided.

At any time during the taking of the deposition, on motion of a party or of the deponent and upon a showing that the examination is being conducted in bad faith or in such manner as unreasonably to annoy, embarrass, or oppress the deponent or party, the court in which the action is pending or the court in the district where the deposition is being taken may order the officer conducting the examination to cease forthwith from taking the deposition, or may limit the scope and manner of the taking of the deposition as provided in Rule 26(c). If the order made terminates the examination, it shall be resumed thereafter only upon the order of the court in which the action is pending. Upon demand of the objecting party or deponent, the taking of the deposition shall be suspended for the time necessary to make a motion for an order.

NRCP 37(d)(3).  The converse is also true for the defending attorney.  “If the court or discovery commissioner finds that any impediment, delay, or other conduct has frustrated the fair examination of the deponent, it may impose upon the persons responsible an appropriate sanction, including the reasonable costs and attorney’s fees incurred by any parties as a result thereof.”  NRCP 37(d)(2).

As you contemplate whether to terminate your public figure client’s deposition, consider a few factors.  The courts really do seem to consider termination the nuclear option.  If you terminate a deposition, you had better have a rock solid reason for it or you will probably be paying for the continued deposition.  Also, if you terminate your public figure client’s deposition, it is your duty to act as quickly as possible to file the motion for protective order.  The courts likely understand there is a slight delay as you gather a transcript, but order a rush copy.  If you do not act promptly, the courts may consider this a sign of bad faith.  Finally, do you need to conduct a separate “meet and confer” conference before filing a discovery motion?  There is no bright-line rule, but use common sense, assuming any remains if the deposition is so bad that you are terminating it.  In such a situation, I typically find the reason counsel cannot agree is already in the transcript.  A separate “meet and confer” would serve no purpose.  Having said that, it may be beneficial to go the extra mile and initiate a separate “meet and confer” in the days after the deposition as you prepare the motion for protective order.  It might be difficult to conduct but a day or two cooling period could facilitate at least a rational discussion of the situation and how best to proceed.  I would not hold my breath, but it is possible.

The Deposing Attorney: Don’t Go Crazy

If you are deposing a public figure, the same “don’t go crazy” rule applies to you too.  Also remember there are limitations about what an attorney can and cannot say publicly about his client’s case.  There was once a local kerfuffle about those limitations.  Gentile v. State Bar of Nevada, 501 U.S. 1030 (1991).

At the end of the day, public figure depositions can raise complications.  I can only encourage the lawyers involved to recognize these potential complications early and try to stay ahead of them.

This article was originally posted on June 28 on Michael P. Lowry’s “Compelling Discovery” blog. Click here to read the original post. 

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Categories: Discrimination | Law Suit | Media

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From time to time I encounter cases where a party is subject to both criminal and civil proceedings arising from the same circumstances.  Examples include drunk drivers involved in car accidents, security guards involved in physical altercations and professionals who mishandle client funds.  This causes concern as to whether the person’s Fifth Amendment rights against self-incrimination will be invoked and what impact that invocation would have on the civil proceeding.  Most often, the criminally charged party wishes to stay the civil matter pending the outcome of the criminal matter.  The other parties to the civil suit typically resist and, until last week, there was little guidance from the Supreme Court of Nevada as to how to balance these interests.

Aspen Fin. Servs. v. Dist. Ct., 128 Nev. Adv. Op. 57 (Dec. 6, 2012) provided this guidance.  The case arose from certain real estate investments which failed.  During the civil lawsuit

[t]he Aspen defendants filed a motion with the district court to stay any depositions and written discovery that would require their employees and officers or Guinn to make testimonial statements. The Aspen defendants asserted that the Federal Bureau of Investigation (F.B.I.) had initiated a criminal investigation into their activities at the behest of the Gragson plaintiffs. They further asserted that they had been served with a federal grand jury subpoena seeking information about various subjects, including the loans for the Milano property. In addition, the Aspen defendants argued that the Gragson plaintiffs had been, and would continue, funneling discovery obtained in the civil proceeding to the F.B.I. After an extensive hearing, the district court issued a written order summarily denying the motion without prejudice.

Id.  The court noted the difficult choice confronting a party to both civil and criminal proceedings.

Here, if discovery is not stayed, Guinn, in particular, will face a difficult choice when the Gragson plaintiffs depose him. He can either waive his Fifth Amendment privilege and risk revealing incriminating information to criminal investigators, or he can assert his privilege and forego the opportunity to deny the allegations against him under oath, thereby effectively forfeiting the civil suit.

Id. (citations and quotations omitted).

After surveying the methodologies used in various jurisdictions to determine how respond to a request for a stay of a civil lawsuit in these circumstances, the Supreme Court adopted a framework used by the Ninth Circuit.

[C]ourts should analyze ‘the extent to which the defendant’s fifth amendment rights are implicated as well as the following nonexhaustive factors:(1) the interest of the plaintiffs in proceeding expeditiously with [the] litigation or any particular aspect of it, and the potential prejudice to plaintiffs of a delay; (2) the burden which any particular aspect of the proceedings may impose on defendants; (3) the convenience of the court in the management of its cases, and the efficient use of judicial resources; (4) the interests of persons not parties to the civil litigation; and (5) the interest of the public in the pending civil and criminal litigation.

Id. (quoting Keating v. Office of Thrift Supervision, 45 F.3d 322 (9th Cir. 1995)).  Applying these criteria to the operative facts, the court ultimately concluded a stay was not appropriate.

Aspen Fin. Servs. expands upon the Supreme Court of Nevada’s Francis v. Wynn Las Vegas, LLC, 27 Nev. Adv. Op. 60, 262 P.3d 705 (2011) decision considering Girls Gone Wild founder Joe Francis’ invocation of his Fifth Amendment rights during deposition.  Francis recognized that Fifth Amendment rights may be invoked in civil litigation, however “a claim of privilege will not prevent an adverse finding or even summary judgment if the litigant does not present sufficient evidence to satisfy the usual evidentiary burdens in the litigation.”  Id. at 711 (citation and quotation omitted).

Together, Francis and Aspen Fin. Servs. do significantly clarify Nevada’s law concerning the application of Fifth Amendment privilege to civil matters.  These clarifications do, however, raise significant concerns as how discovery will be conducted where parallel civil and criminal proceedings occur and the need for motion practice to invoke a stay.

As originally posted on on 12/12/12

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Extra! Extra!

On June 28, 2012 the Supreme Court of Nevada changed the calculation of medical damages in personal injury suits.  Tri-County Equipment & Leasing v. Klinke involved a woman/employee who was injured, by a third-party, while within the course and scope of her employment.  The employee received workers’ compensation benefits and then sued the third-party for negligence. At trial the employee admitted evidence that her medical providers billed her a certain amount.  The defense then sought to admit evidence that the medical providers had accepted, as payment in full, a lesser amount from workers’ compensation.  The district court refused to admit the amount paid and the issue was appealed.
The Supreme Court reversed.  “Applying Nevada law, we conclude that evidence of the actual amount of workers’ compensation benefits paid should have been admitted and that a clarifying jury instruction provided by statute should have been given.”

In resolving this case, the court ruled narrowly.  It seems to say evidence of the amount billed AND the amount paid is admissible based under NRS 616C.215(10).  Meaning the employee could tell the jury how much the providers billed, but the defense can state how much the providers accepted as payment in full.  “Applying Nevada law, we conclude that evidence of the actual amount of workers’ compensation benefits paid should have been admitted and that a clarifying jury instruction provided by statute should have been given. “  Once this evidence is admitted, the jury decides the reasonable value of the services.

The court did not address any other context like Medicaid or other governmental programs with similar discounts.  “Because the amount of workers’ compensation payments actually paid necessarily incorporates the written down medical expenses, it is not necessary to resolve whether the collateral source rule applies to medical provider discounts in other contexts.”

So why is this on a discovery blawg?  Footnote six.

[I]t is apparent that there are numerous reasons for medical provider discounts, including discounts that result when an injured party’s insurance company has secured medical provider discounts as part of the health insurance plan.  At least in those circumstances, such benefits may reside within the scope of the collateral source rule, although that is a legal issue we leave for a case that requires its determination. Whether the collateral source rule applies to other types of medical expense discounts would require evidence of the reason for the discount and its relationship to the third-party payment.

I read this as a hint that, if the court is to rule on how this issue applies beyond the confines of NRS 616C.215(10), it will expect the defense (presumably) to present, or at least make an offer of proof, consisting of “evidence of the reason for the discount and its relationship to the third-party payment.”

*This blog was originally posted in Michael's blog Compelling Discovery
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