Enforcing a Fed. R. Civ. P. 45 subpoena against an expert is not for the faint of heart. Rarely invoked and often resisted, issuing a Rule 45 subpoena against an expert is tough to enforce but when it works, it can unlock critical discovery. Courts are often reluctant to compel an expert to produce anything beyond the disclosures required under Fed. R. Civ. P. 26, but some courts allow discovery of information beyond what Rule 26 requires expert disclosures to produce.
Differences Between Discovery Devices for Parties and Witnesses
The Federal Rules of Civil Procedure distinguish between discovery devices available against parties and those against nonparty witnesses.
- Fed. R. Civ. P. 34 governs requests for production of documents from parties involved in the litigation. Rule 34 includes a specific provision regarding nonparties and references the ability to use Rule 45 against a nonparty.
- Fed. R. Civ. P. 45 utilizes the subpoena power of the federal courts and allows parties to compel nonparties, including third-party vendors, experts and non-party witnesses to attend and testify for depositions and to produce requested documents through a properly issued Rule 45 subpoena.[1]
- Fed. R. Civ. P. 26 governs the scope of expert discovery and mandatory disclosures in federal litigation, including the automatic disclosure of expert information without the need of additional discovery requests from the opposing party.[2]
The 2013 updates to Rule 45 establish that a subpoena must issue from the court presiding over the litigation, meaning that no matter where the non-party witness lives, the Rule 45 subpoena needs to be issued from the court where litigation is pending.[3] Using a Rule 45 subpoena gives attorneys the power to reach out-of-state experts, but it also provides jurisdictional safeguards for those experts, imposing compliance and commanding production of documents within 100 miles of where the person resides, is employed, or regularly transacts business.[4] It imposes responsibility on the party issuing the Rule 45 subpoena to take reasonable steps to avoid undue burden or expense and allows the person served to issue written objections and a court to quash or modify the subpoena.[5]
Once a timely objection is lodged, Rule 45 triggers the ability to enforce the subpoena through a Motion to Compel, where the issuing party can request the court for an order compelling production or inspection.[6] Where the Motion to Compel is filed is important as it should be filed in the federal court where that expert is located, even if it that expert resides out of state.[7] This can mean litigating the enforcement of the Rule 45 subpoena in a different state than where the subpoena is issued (where the underlying litigation is) and sometimes even securing pro-hac vice admission to do it.
When is Rule 45 Worth the Fight?
Experts are not completely insulated from the reach of a properly issued Rule 45 subpoena. Various federal courts have recognized that Rule 26 does not limit or prohibit a party from requesting additional written information from an opponent’s testifying expert witness.[8] Arguably, a properly issued Rule 45 subpoena falls within the broad scope of Rule 26. As the Advisory Committee Notes made clear to the 1993 amendments, Rule 26 expressly recognizes that the required disclosures do not shut the door on traditional discovery methods to obtain further information.[9]
Rule 26 sets the floor, not the ceiling for expert discovery, and when more is needed, traditional discovery tools like a Rule 45 subpoena can be used to break through. Used strategically, Rule 45 is not just worth the extra fight, it can be the game changer in the litigation.
Amanda Collura-Day and Shiena Marie Burke are members of Kean Miller’s Casualty and Mass Tort Litigation group, which manages litigation dockets and tries cases for some of the leading companies in the United States. The team defends clients locally, regionally, and nationally in a wide variety of claims involving wrongful death, bodily injury, industrial accidents, chemical release or exposure, products liability, medical malpractice, workers compensation, as well as breach of contract and business disputes.
[1] Allstar Electronics, Inc. v. Honeywell Int’l, Inc., 8:10-CV-1516-T-30TGW, 2011 WL 4908853, *1 (M.D. Fla. Oct. 13, 2011).
[2] Fed. R. Civ. P. 26(a)(2).
[3] Fed. R. Civ. P. 45(a)(2).
[4] Fed. R. Civ. P. 45(c)(1)(A).
[5] Fed. R. Civ. P. 45(d)(3)(A)-(C).
[6] Fed. R. Civ. P. 45(d)(2)(B)(i)-(ii).
[7] Fed. R. Civ. P. 45(d)(2)(B)(i)-(ii).
[8] See, e.g., All W. Pet Supply Co. v. Hill’s Pet Prods. Div., 152 F.R.D. 634, 639 (D.Kan. 1993) (“With regard to nonparties such as plaintiff’s expert witness, a request for documents may be made by subpoena duces tecum pursuant to Rule 45.”); United States v. Bazaarvoice, Inc, No. C 13-00133 WHO (LB), 2013 WL 3784240, at *3 (N.D. Cal. July 18, 2013) (“Regardless of Bazaarvoice’s obligations under Rule 26(a)(2)(B), the government can use different discovery tools to illuminate and challenge expert testimony, as discussed above. A Rule 45 subpoena is such a mechanism.”); Roman v. City of Chicago, No. 20 C 1717, 2023 WL 121765, at *3 (N.D. Ill. Jan. 6, 2023); See Modjeska v. United Parcel Serv. Inc., 2014 WL 2807531, at *6 (E.D. Wis. June 19, 2014) (“Rule 26(a)(2)(B) governs only disclosure in expert reports, however, and it does not preclude parties from obtaining further information through ordinary discovery tools.”); see also Est. of Jackson v. Billingslea, 2019 WL 2743750, at *4 (E.D. Mich. July 1, 2019) (“[C]ourts routinely allow discovery of information beyond what 26(a)(2)(B) requires.”); Izzo v. Wal-Mart Stores, Inc., 2016 WL 593532, at *2 (D. Nev. Feb. 11, 2016) (“[W]here a party seeks addition [sic] information regarding the expert’s opinion, she may seek to obtain that information through the discovery process.”).
[9] Fed. R. Civ. P. 26(a)(2)(B) advisory committee’s note (1993 amendments).