Originally from:
The Practice of International Litigation - 2nd Edition - Looseleaf
The Practice of International Litigation - 2nd Edition - Electronic
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Extraterritorial Reach of Rule 45 Subpoena
Lawrence W. Newman and Michael Burrows
As of December 1, 1991, Federal Rule of Civil Procedure 45 was
amended in a number of significant ways. This chapter discusses one such
amendment, subparagraph (a)(2), and its implications for the practice of
international commercial litigation. Subparagraph (a)(2) provides:
A subpoena commanding attendance at a trial or hearing shall issue from the
court for the district in which the hearing or trial is to be held. A subpoena
for attendance at a deposition shall issue from the court for the district
designated by the notice of deposition as the district in which the deposition
is to be taken. If separate from a subpoena commanding the attendance of
a person, a subpoena for production or inspection shall issue from the court
for the district in which the production or inspection is to be made.
Because subparagraph (a)(2) has been construed by the Advisory
Committee On Civil Rules (“Advisory Committee”) to give courts the
power to subpoena documents located outside of the forum district, the
question arises: Does this amendment grant a federal court the power to
subpoena materials located in foreign countries? The extent of the reach of Rule 45(a)(2) is a topic of
particular importance to large international corporations with both
domestic and foreign branches. This chapter addresses the issue of
whether a subpoena duces tecum issued pursuant to Rule 45 and served on a
domestic branch of a corporation with branches outside the United States
may properly reach documents in the custody or control of the corporation
located outside the United States. The answer to this question is, at the
present time, uncertain.
Prior Scope of Rule 45 Subpoenas
When subparagraph (a)(2) became effective on December 1, 1992, the
courts were split on the issue of whether pursuant to Rule 45 a subpoena
duces tecum could direct a non-party to produce documents and other
materials located outside of the jurisdiction of the forum district. Some
courts held that this could not be done, asserting that the 100-mile
limitation placed on non-party depositions by subparagraph (d)(2) of Rule
45 also applied to the production of documents. Other courts rejected this
analysis and held that Rule 45(d)(1), in conjunction with Rules 1 and
30(b)(6) of the Federal Rules of Civil Procedure, authorized a court to
subpoena materials in the custody and control of a non-party over whom
the court had jurisdiction even when the subpoenaed materials were located
outside the forum district.
Narrow View of Subpoena Powers
The Fifth Circuit was the primary proponent of the former position. In
Cates v. LTV Aerospace Corp., (“Cates”) the Fifth Circuit held that “a court
cannot order production of records in the custody and control of a nonparty
located in a foreign judicial district.” There, a subpoena was directed
to the United States Navy and served within the forum district on the
commanding officer of the Dallas Naval Air Station. The subpoena
requested an Aircraft Accident Report, which was located in Norfolk,
Virginia, of a plane crash in Okinawa. Pursuant to Navy regulations, the
report was in the control and custody of the Secretary of the Navy in
Washington, D.C.
Plaintiffs argued that, pursuant to Rule 30(b)(6), a person designated by
an agency may be required to produce documents located in another
jurisdiction. The Fifth Circuit rejected the argument and applied instead the
limitations found in subparagraph (d)(2) of Rule 45, which set forth the
territorial scope of a deposition subpoena to “any place within 100 miles
from the place where the person resides is employed or transacts business
in person or is served, or at such other convenient place as is fixed by an
order of court.” The court declared: “It [Rule 30(b)(6)] does not deal with
the issue of where the deposition is to be taken or where documents are to
be produced. This is reserved to Rule 45(d)(2).”
Lawrence W. Newman has been a partner in the New York office of Baker & McKenzie since 1971, when, together with the late Professor Henry deVries, he founded the litigation department in that office. He is the author/editor of 4 works on international litigation/arbitration.
Michael Burrows, Formerly, Of Counsel, Baker & McKenzie, New York.
