FEDERAL SUBPOENA
Anonymous

    It was a Friday afternoon, and although it wasn’t the greatest of days at the firm, I was getting by okay, until one of the litigation partners came by my office to ask me about the procedure for issuing a federal subpoena for a mainland deposition. Since I work primarily on federal cases and have set up many oral and written depositions in various locations on the mainland, I felt comfortable explaining the process: the attorney of record completes the standard pre-printed form used by all federal courts and issues it (i.e. signs and dates it) as an officer of the court. The district where the deposition will take place is identified on the top of the form.

    "But doesn’t the court issue the subpoena?" the partner asked. "No, they do not," I explained, "The attorneys, as officers of the court, can issue the subpoena." "Well, doesn’t it have to be issued by the court on the mainland?" he continued. "No, it does not." I replied. Well, my word on the matter wasn’t good enough; he had to see the rule. So I pulled out my copy of the Federal Rules of Civil Procedure and pointed him to Rule 45. He briefly skimmed through the rule and then said, "Well, that’s not what it says here."

    I pointed out to him that Rule 45(D)(3) states: "An attorney as officer of the court may also issue and sign a subpoena on behalf of (A) a court in which the attorney is authorized to practice; or (B) a court for a district in which deposition or production is compelled by the subpoena, if the deposition or production pertains to an action pending in a court in which the attorney is authorized to practice." I explained to him that I’ve been setting up mainland depos in federal cases for years, and I know that, for the last several years anyway, the attorney issues the subpoena, not the court. I explained that, just to be sure, when I set up depos in a state I haven’t worked in before, I usually contact the federal court to inquire on the proper procedure for issuance of the subpoena, and so far, all the states I have dealt with do not require that the subpoena be issued by their court and have assured me that the subpoena can be issued by the attorney. I even went so far as to show him correspondence from the USDC for the Central District of California which confirmed what I was saying.

    Still, it wasn’t good enough. Determined to prove me wrong, the partner went on-line with Moore’s Federal Practice to research the issue. It didn’t matter that I have prepared literally hundreds of subpoenas for mainland depositions, or that I work almost exclusively on federal court cases.

    Just to be sure, I went to the attorney with whom I normally work, and for whom I prepared all those federal subpoenas, to ask him for his opinion as well as his interpretation of Rule 45--thank goodness, he agreed with me. I even spoke to another paralegal who has done federal court work and is also very familiar with the procedures and she agreed that the procedure I had been trying to get through to the partner was in fact the correct one.

    In all, I spent nearly two hours trying to convince the partner, to no avail. (To top it off, this wasn’t even my case, and I wasn’t even working on the subpoenas, another paralegal was doing the work--the partner had come to me for simple verification. Simple.)

    Well, my input on the subject was totally disregarded, and the paralegal on the case was instructed to send the subpoenas to our federal court for issuance. When the messenger came back with the subpoenas, which the clerk refused to issue, explaining that the court doesn’t issue subpoenas in federal cases, the attorney signs the subpoenas, I just shook my head.