A recent Federal District Court ruling illustrates that the timeliness of objections to a Rule 45 Subpoena is critical. In Lula Williams, et al., v. Big Picture Loans, LLC, et al., No. CV 3:18-MC-1, 2018 WL 1368271, at *5 (E.D. Va. Mar. 16, 2018), the court ruled that the failure to make timely objections rendered the objections waived. We’ve written about other Rule 45 Subpoena issues in the past.
A Rule 45 subpoena recipient can assert objections, but the plain language of Rule 45 requires objections to be served “before the earlier of” the production date or 14 days after service of the subpoena. Fed. R. Civ. P. 45 (d)(2)(B).
Normally, failure to timely object to a subpoena waives any objection. “Untimely objections may, however, be considered in ‘unusual circumstances and for good cause shown,’ including ‘where counsel for the nonparty and for the subpoenaing party were in contact with respect to the nonparty’s compliance prior to the time the nonparty challenged the subpoena.'” Lula Williams, No. CV 3:18-MC-1, 2018 WL 1368271, at *4.
In Lula Williams, the court found that the parties’ communications extending the production date by 15 days did not indicate that the extension was also intended to apply to the objections. Under those circumstances, the Lula Williams court did not find good cause to consider the objections, and thus considered the objections waived. Id, at *5.
This is a harsh result – especially when the parties were in communication regarding the subpoena and the production date. However, it highlights what we have come to accept in our federal court practice – always detail your conferral with opposing counsel and request an order of the court for any extensions of time. This seems simple, but it is often overlooked. Indeed, the Lula Williams court specifically noted that the objecting party needed to object within the time set forth under Rule 45, “or secure an extension of time from the Court.” Id, at *5.
If you need assistance with a Rule 45 Subpoena and/or are involved in a lawsuit and need Colorado local counsel, our Colorado litigation lawyers will help you. Contact our Boulder civil litigation attorneys today. LaszloLaw is a Colorado-based law firm that provides counsel on a wide range of legal needs including litigation. Contact our lawyers online or at 303-926-0410 to discuss your issues relating to a Federal Rule 45 Subpoena.