Commercial Litigation and Arbitration

Discovery Subpoenas — Failure to Notify Adversary of Service

Fed.R.Civ.P. 45(b)(1) requires that all parties be notified of the issuance of a subpoena for discovery purposes. At a minimum "the 'prior notice' requirement mandates notice to the opposing parties at least simultaneously with the issuance of the subpoenas." McClendon v. TelOhio Credit Union, No. 2:05-CV-1160, 2006 WL 2380601, at *2 (S.D. Ohio Aug 14, 2006). Neither Rule 45 nor Rule 37 authorizes the imposition of sanctions for failure to notify adverse parties of the issuance of a discovery subpoena. Sanctions are available in appropriate circumstances, however, under 28 U.S.C. § 1927 and the inherent power of the court. Shell v. Hilliard, 2007 U.S. Dist. LEXIS 10830 (E.D. Tenn. Feb. 13, 2007) (denying sanction because ‛defense counsel's failure to provide prior notice of the subpoenas to plaintiff's counsel was inadvertent, unintentional, and not the result of any malice, intentional abuse, or bad faith ... [and] the plaintiff has not suffered any prejudice“).

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