Episode Details

Can you issue a trial subpoena under Fed. R. Civ. P. 45 (or its state equivalents) not to a named person, but instead to a 30(b)(6)-style "Corporate Representative" and attach a list of topics? In this episode, Jim Garrity outlines the leading cases on point and discusses the arguments pro and con. The Show Notes below include a list of the cases upon which this episode is based, as well as a cite to an actual subpoena issued in this manner and the Motion to Quash that the subpoena triggered. (REMINDER: If you don't see all the cases, click through to the page that hosts our podcast. Not all sites allow lengthy show notes, but you'll always find the complete Show Notes on our home page.)

SHOW NOTES

Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM, 2023 WL 4686245, at *2 (M.D. Fla. July 21, 2023) (containing thorough analysis of issue, concluding “These procedures in Rule 30(b)(6) are applicable to depositions and do not apply to trial-witness subpoenas. Concluding otherwise would allow Rule 30 to expand the meaning of Rule 45 without any textual support for doing so. Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015).)

Defendant’s Motion To Quash Plaintiff’s Subpoena To Appear And Testify At A Hearing Or Trial In A Civil Action. CM/ECF Doc. 153 (on Pacer.gov), Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM (M.D. Fla. July 21, 2023)

[Example] Subpoena to Appear and Testify at A Trial or Hearing in a Civil Action (directed to “Corporate Representatives of [Defendant] with the most knowledge concerning the matters identified in the attached Exhibit “A” c/o [Counsel for Defendant],” Legion Sys., LLC v. Valiant Glob. Def. Servs., Inc., No. 8:20-CV-2321-KKM-MRM, 2023 WL 4686245, at *2 (M.D. Fla. July 21, 2023), CM/ECF Doc. 153-1 (attaching FRCP 30(b)(6)-style topic list as Exhibit A to rule 45 subpoena)

Bd. of Regents Univ. of Texas Sys. v. Bos. Sci. Corp., No. CV 18-392-GBW, 2023 WL 346243, at *2 (D. Del. Jan. 20, 2023) (“Out-of-Circuit caselaw, while more on point, has been inconsistent. In 1987, the Ninth Circuit held that a district court did not abuse its discretion when the court quashed a subpoena under Rule 45 directed towards a corporation because it had “discovered no authority ... for the proposition that the Rule 30 standards [that permit subpoenas upon a corporation] should govern Rule 45 subpoenas of witnesses.” Donoghue v. Orange Cnty., 848 F.2d 926, 932 (9th Cir. 1987). In 2013, a California district court distinguished the Ninth Circuit's ruling as having “emphasized a trial court's discretion” and as coming prior to 1991 amendments to Rule 45. See HTC Corp. v. Tech. Properties Ltd., 2013 WL 12166376, at *2 & n.9 (N.D. Cal. Sept. 20, 2013). That case relied, in part, see id., on a 2013 case, Conyers, in which a district court also required a corporate party to “comply with [a Rule 45] subpoena by producing its corporate representative at trial[,]” Conyers v. Balboa Ins. Co., 2013 WL 2450108, at *2 (M.D. Fla. June 5, 2013). However, the Sixth Circuit, in 2015, appeared to reject the Conyers decision and stated that a party which seeks to have a corporate representative testify at trial has two options: “subpoena a corporate witness who either ‘resides, is employed, or regularly transacts business in person’ in [the state]” or “take[ ] a deposition of a corporate officer during discovery for its use at trial.” Hill v. Homeward Residential, Inc., 799 F.3d 544, 553 (6th Cir. 2015) (quoting Fed.R.Civ.P. 45(c)(1)(B)). The Sixth Circuit, however, held that the “subpoena failed several aspects” of Rule 45, and concluded that “the district court did not abuse its discretion in e