No matter how thoroughly planned and well executed a discovery strategy may be, it is still nearly inevitable that as discovery closes there will be one needed document that has not yet been obtained. If less than 30 days remains in discovery, some may be tempted to simply send a subpoena to the opposing party since the return date can be less than 30 days. Is that subpoena actually enforceable? The answer depends upon your jurisdiction as “courts are divided as to whether Rule 45 subpoenas should be served on parties.” Mezu v. Morgan State Univ., 269 F.R.D. 565, 581 (D. Md. 2010).

The text of Rules 34 and 45 are ambiguous on this point.

FRCP 34 generally governs the production of documents. “A party may serve on any other party a request within the scope of Rule 26(b)….” FRCP 34(a). It also considers the status of non-parties. “As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.” FRCP 34(c).

Yet the text of FRCP 45 does not state it is limited to non-parties. The advisory committee notes indicate it can be used “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties.” They also state “[t]he non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.”

Lacking specific guidance in the text of the rules or the advisory committee notes, courts have reached differing conclusions about whether Rule 45 can be used against a party.

Some courts conclude subpoenas to parties are enforceable.

Mortg. Info. Servs., Inc. v. Kitchens, 210 F.R.D. 562 (W.D.N.C. 2010) provided a thorough analysis of the argument in favor of permitting Rule 45 subpoenas to be served upon parties. The text of the rule provided

no express limitation on the type of person who may be subject to the rule, as its language describes the individual upon whom a Rule 45 subpoena may be served simply as a “person” rather than a “non-party.” Had the drafters of Rule 45 intended to restrict its scope to non-parties, they could easily have done so. Indeed, the separate and distinct use of the terms “person” and “person who is not a party” in the text of Rule 45 clearly demonstrates that the drafters were aware of the effect they would have on the scope of the rule’s various provisions.

For example, the drafters limited the type of person eligible to serve a Rule 45 subpoena by stating in subsection (b)(1) that service may only be accomplished by a “person who is not a party” and is over the age of eighteen. Fed. R. Civ. P. 45(b)(1). They nevertheless elected not to use similar language in describing those subject to service under subsections (a), (c), (d), and (e).

Mortg. Info. Servs., 210 F.R.D. at 565.

The court also relied upon Rule 34’s advisory committee notes to support its conclusion. Non-parties were not included in Rule 34 for many reasons. However, “[n]owhere in the text of the rule or the Advisory Committee Notes is it stated that any provision of Rule 34 is intended to restrict the scope of Rule 45.” Id.

Despite this, using Rule 45 is still usually considered a discovery device that may be used only within the time provided by the discovery scheduling order. In other words, “it is unthinkable that the effect of Rule 34 can be emasculated by the use of Rule 45.” McLean v. Prudential Steamship Co., Inc., 36 F.R.D. 421, 425 (E.D.Va. 1965). There is one exception allowing Rule 45 subpoenas to obtain original documents for trial where copies have been disclosed during discovery, but otherwise Rule 45 subpoenas cannot be properly filed and served following the close of discovery. Mortg. Info. Servs., 210 F.R.D. at 567.

Certain treatises support the argument Rule 45 may be utilized against a party. Moore’s Federal Practice concluded Rule 45 “may be used to subpoena any person–party or nonparty–to produce books, documents, or tangible things at the trial.” James Wm. Moore, 7 MOORE’S FEDERAL PRACTICE § 34.02[5][c] (3d ed. 1997); see also 9 MOORE’S FEDERAL PRACTICE § 45.03[1] (noting that “[s]ubpoenas under Rule 45 may be issued to parties or non-parties”); FEDERAL PROCEDURE, LAWYERS EDITION § 26:464 (1994) (“FRCP 45, unlike FRCP 34(a) and (b), applies to nonparties as well as parties.”).

Other courts conclude subpoenas to parties are unenforceable.

The opposing argument is that Rules 34 and 45 are mutually exclusive. Courts reaching this conclusion read the same text and advisory committee comments to indicate Rule 45 applies to those who are not parties to the lawsuit.

Jones v. Nat’l Am. Univ., 2008 U.S. Dist. LEXIS 82384, 2008 WL 4616684 (D.S.D. 2008) considered a plaintiff’s subpoena to the defendant and started with the plain language of the rules. “Because Rule 34 specifically references a procedure for obtaining documents from a party and specifically states that documents can be obtained from non-parties pursuant to Rule 45, the court finds that the language of Rule 34 indicates that it applies to documents requested from parties and Rule 45 applies to documents requested from non-parties.”

It also relied upon advisory committee notes to support this interpretation.

The advisory committee notes recognize that one of the purposes of Rule 45 is “to facilitate access outside the deposition procedure provided by Rule 30 to documents and other information in the possession of persons who are not parties.” Additionally, the advisory notes indicate that under Rule 45, “[t]he non-party witness is subject to the same scope of discovery under this rule as that person would be as a party to whom a request is addressed pursuant to Rule 34.” These comments presume that Rule 45 applies to individuals who are not parties to the lawsuit.

Id. (citations omitted).

Stated another way, “while the language of Rule 45 … may … not be crystal clear, it is apparent … that discovery of documents from a party, as distinct from a non-party, is not accomplished pursuant to Rule 45.” Hasbro, Inc. v. Serafino, 168 F.R.D. 99, 100 (D. Mass. 1996); Alper v. United States, 190 F.R.D. 281, 283 (D. Mass. 2000). “A subpoena duces tecum, under Rule 45, is not intended as a substitute for a motion to produce under Rule 34, where … the subpoena requires production of documents under the control of plaintiff, as distinguished from documents in the possession and control of an independent witness.” Wirtz v. Local Union 169, Int’l Hod Carriers’, 37 F.R.D. 349, 351 (D. Nev. 1965).

These courts have also found support from treatises. “Discovery of documents from a party is not accomplished pursuant to Rule 45; a party seeking to compel the production of documents from another party must comply with the relevant discovery rules.” Charles Alan Wright & Arthur R. Miller, 9A FEDERAL PRACTICE AND PROCEDURE § 2452 at n.1 (2d ed. 1995 & Supp. 2001). Another treatise stated “[t]he only apparent reason for proceeding under Rule 45 would be to obtain the documents in less than the 30 days required by Rule 34.” William W. Schwarzer, FEDERAL CIVIL PROCEDURE BEFORE TRIAL, P 11:1809.6.

What is a litigant to do?

If time permits, serve Rule 34 requests upon the opposing party. This avoids the debate about whether a subpoena may be served upon a party. If time is short, check your local jurisdiction and then issue the subpoena unless barred by prior local case law.

This article was originally published in The Voice: The Newsletter of DRI, Vol. 14 Issue 6 (February 11, 2015).