The Nevada Bank Records and the 100-Mile Problem
Today is March 3. Trial is March 31 in the U.S. District Court for the District of Arizona. The local rule requires trial subpoenas to be served no later than 14 days before trial, which is March 17. Defendant needs account-transfer records from a nonparty bank branch in Nevada, about 190 miles from the Arizona courthouse. The records are essential to trace $48,000. On March 3 the paralegal serves a Rule 45 subpoena on the bank's registered agent in Arizona, commanding production at the Arizona courthouse on March 24. On March 11 the bank objects, citing undue burden and saying the Nevada custodian cannot produce in Arizona. The bank offers to produce in 30 days absent a court order. The paralegal must advise whether to meet and confer, seek an order in Arizona, or issue a new subpoena.
1. Is the March 3 subpoena enforceable against the Nevada custodian? Explain the place-of-compliance problem.
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Likely not as to the Nevada custodian. Rule 45(c)(2)(A) requires compliance within 100 miles of where the person resides, is employed, or regularly transacts business in person, or within the state where the person resides if a state subpoena is used. The custodian is in Nevada, 190 miles from the Arizona courthouse. Serving the Arizona registered agent may bind the bank for documents it holds in Arizona, but it does not compel a Nevada custodian to appear or produce in Arizona. The objection is timely and has merit. The subpoena also may violate Rule 45(b)(2) because it was issued by the Arizona court, not the court for the district where compliance is required.
2. What are the practical options to obtain the records before March 31, and which do you recommend?
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Options include meeting and conferring for a Nevada production with a custodian declaration and authentication under 902(11) or 902(13); issuing a new Rule 45 subpoena from the District of Nevada with a March 24 production date; seeking an Arizona order compelling the bank's registered agent to produce records it actually controls; or seeking a short continuance if the records are essential. Recommend the Nevada subpoena plus a meet-and-confer for rolling production and a declaration. That cures the place-of-compliance defect, preserves the March 31 trial date, and avoids an Arizona order that cannot bind the Nevada custodian. Keep the Arizona subpoena alive only for documents the agent controls.
3. What should the paralegal do about the March 17 local trial-subpoena deadline?
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The March 17 deadline applies to trial subpoenas. The March 3 subpoena was served in time, but if it is quashed, the replacement Nevada subpoena must be served no later than March 17 to comply. If the bank will not produce until after that date, file a motion for leave or to shorten time, and document the bank's refusal. Do not let the local deadline pass without either a compliant subpoena or a court order; otherwise the records may be excluded. Calendar March 17 and March 24 separately and note that the 30-day offer from the bank would run past trial.