Back To Basics: Does The Constitutional Requirement Of Personal Jurisdiction Apply To Multi-Jurisdictional Subpoenas Under Federal Rule of Civil Procedure 45?

Post Authored By: Alex D. Pappas

As law students across the country review for the bar examination, they will no doubt be reviewing Pennoyer v. Neff[1]and International Shoe Co. v. Washington[2]in support of the foundational principle that personal jurisdiction constrains the power of courts. At the same time, a motion to quash proceeding in the U.S. District Court for the Eastern District of Michigan[3]—arising out of a patent infringement suit filed against Apple Inc. (“Apple”) in the U.S. District Court for the Eastern District of Texas[4]—calls into question whether this key principle applies with full force to multi-jurisdictional subpoena practice under Federal Rule of Civil Procedure 45.

Before 2013, Rule 45 required that “subpoenas for deposition testimony” be issued in “the court in the district where the deposition would be held and where the documents would be produced.”[5] However, under the direction of the Federal Rules Advisory Committee, Rule 45 was amended in 2013 to provide that “all subpoena(s) must issue from the court where the action is pending.”[6] Rule 45(f)–(g), as amended, further provides that enforcement of the issuing court’s order—including a contempt citation—can be facilitated by the federal district court where “compliance is required.”[7] Alternatively, Rule 45 permits the court where compliance is required to transfer the motion to quash to the issuing court.[8] Though seemingly innocuous, this change gives rise to a substantial and unavoidable constitutional challenge. 

In 2018, Omni MedSci (“Omni”), a Michigan-based laser technology startup, filed a patent infringement suit against Apple in the Eastern District of Texas.[9] At the early stages of this litigation, Apple served a third-party subpoena from the Eastern District of Texas on Thomas Lewry (“Lewry”), a Michigan resident and the Michigan-based lead counsel for Omni.  Omni and Lewry subsequently filed a motion to quash in the Eastern District of Michigan, alleging that the Texas court did not have personal jurisdiction over Lewry because, among other things, Lewry lacked sufficient “minimum contacts” with Texas to confer personal jurisdiction.[10]

According to Omni and Lewry, Rule 45(a)(2) is unconstitutional, facially and as-applied, because it permits  a subpoena to be issued from the federal court where a case is pending without regard for whether that court has personal jurisdiction over the person or entity being subpoenaed.[11] Omni and Lewry further argued that “the confines of jurisdiction [must also] apply to subpoenas.”[12] Thus, the issuing court cannot make a binding directive without first guaranteeing that it has either general or specific jurisdiction over the person or entity from whom information is sought.[13] Leaving the question unadjudicated, Apple ultimately withdrew its subpoena in the Omni litigation.[14] Lewry and Omni’s argument is notable because it squarely targets the constitutionality of current nationwide multi-jurisdictional subpoena practice under Rule 45’s 2013 amendment.

Analogous concerns were initially raised by the Los Angeles County Bar Association as the Rules Advisory Committee contemplated its 2013 modification to Rule 45. Specifically, a 2012 comment letter by the Los Angeles Bar expressed “that requiring all subpoenas to issue from the court in which the action is pending could give rise to some complicated jurisdictional questions[.]”[15] In support of its position, the Los Angeles Bar outlined the general rule that “the subpoena power of a court cannot be more extensive than its jurisdiction.”[16] The Los Angeles Bar further noted that recipients of “third party subpoenas often lack minimum contacts with the state in which the action is pending, and thus, the issuing court will often lack personal jurisdiction over third parties who possess relevant information.”[17]

The Seventh Circuit expounded similar concerns to the Los Angeles Bar in Leibovitch v. Islamic Republic of Iran.[18]In Leibovitch, plaintiffs were issued a default judgment after suing Iran for providing support to a terrorist organization that carried out a terrorist attack in Israel. To facilitate collection of the judgment, plaintiffs sought to compel information regarding Iranian assets held in Chicago through a third-party subpoena.[19] Plaintiffs’ motion to compel was denied by the district court. The Seventh Circuit subsequently affirmed Chief Judge Castillo’s opinion and rejected the notion that third-party subpoenas can be issued without regard for personal jurisdiction.[20] In so concluding, the Seventh Circuit noted that “[t]hat can’t be right, for a court that issues subpoenas is enforcing something rather than begging, and so far as we know no court has bought the argument.”[21] Notably, the Seventh Circuit did not address whether this problem renders Rule 45 unconstitutional on its face.[22] Litigants ought to take note that the argument that personal jurisdiction simply does not apply to subpoenas is beginning to face significant headwinds.

One may initially push aside the legitimacy of such a challenge to Rule 45 by finding comfort in the seemingly intuitive notion that Federal Rules of Civil Procedure must be constitutional as the Supreme Court itself adopted it.[23] However, it should be noted that the Supreme Court itself has already held on a number of occasions that its adoption does not “foreclose consideration of” the Federal Rules of Civil Procedure’s “validity, meaning or consistency.”[24]

While the constitutionality of Rule 45 is exceedingly significant, the legal community is unlikely to find a final resolution in the near future because litigants are more likely to withdraw a subpoena than to fight this novel constitutional battle in court. How litigants and courts ultimately answer these questions is of exceptional importance because it calls into doubt the constitutionality of multi-jurisdiction subpoenas issued nationwide. And, there are a plethora of questions that remain unanswered. For example, “[c]ould a recipient of a subpoena from an issuing court that lacks jurisdiction over the recipient simply ignore the subpoena?”[25] Were they to do so, could they legally be held in contempt?  “Would the enforcing court have to quash the subpoena if the issuing court lacked personal jurisdiction?”[26] With these questions unanswered, federal litigants nationwide must proceed with little guidance as to the propriety of the current rules governing multi-jurisdictional subpoena practice.

As litigants await judicial guidance, these unanswered questions may make litigants feel like they are walking with a Shoe on the wrong foot.

[1]              Pennoyer v. Neff, 95 U.S. 714 (1877).

[2]              Int’l. Shoe Co. v. Washington, 326 U.S. 310 (1945).

[3]              Thomas A. Lewry, et al v. Apple, Inc., 2:19-mc-50654-LVP-RSW (E.D. Mich.).

[4]              Omni MedSci, Inc. v. Apple Inc.,2:18-CV-00134-RWS (E.D. Tex.).

[5]              Mot. To Quash Subpoena To Test. At Dep. And Mot. For Sanctions., Thomas A. Lewry, et al v. Apple, Inc., 2:19-mc-50654-LVP-RSW (E.D. Mich.), ECF No. 1 at 28 (citing Martensen v. Koch, 301 F.R.D. 562, 586 (D. Colo. 2014)).

[6]              Martensen, 301 F.R.D. at 585.  

[7]              Fed. R. Civ. P. 45(f)–(g).

[8]              Id. 

[9]              Supra note 4 at ECF No. 1.

[10]            Supra note 5 at 2-7.

[11]            Id.

[12]            Id. at 32 (citing United States v. Morton Salt Co., 388 U.S. 632, 642 (1950)).

[13]            Id. at 33. 

[14]            Notice of Withdrawal of Mot. to Quash Apple’s Subpoena to Test. at Dep., Thomas A. Lewry, et al v. Apple, Inc., 2:19-mc-50654-LVP-RSW (E.D. Mich.), ECF No. 6 (noting that Apple represented that it withdrew its subpoena and deposition notice service on Thomas A. Lewry).

[15]            L.A. Cty. Bar Ass’n, Comments on Proposed Revisions to Federal Rule of Civil Procedure 45, (Feb. 1, 2012),

[16]            Id. (quoting United States Catholic Conference v. Abortion Rights Mobilization, Inc., 487 U.S. 72, 76 (1988)).

[17]            Id.

[18]            Leibovitch v. Islamic Republic of Iran,852 F.3d 687 (7th Cir. 2017).

[19]            Id.

[20]            Id.

[21]            Id. at 689.

[22]            Id.

[23]            Supra note 5, at 29.

[24]            Mississippi Pub. Corp. v. Murphree.,326 U.S. 438, 444 (1946).

[25]            Supra note 15.

[26]            Id.


Alex D. Pappas is a magna cum laude graduate of Georgetown University Law Center and a law clerk on the United States District Court for the Northern District of Illinois.

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