As of December 1, 1991, Federal Rule of Civil Procedure 45 was amended in a number of significant ways. This chapter discusses one such amendment, subparagraph (a)(2), and its implications for the practice of international commercial litigation. Subparagraph (a)(2) provides:

A subpoena commanding attendance at a trial or hearing shall issue from the court for the district in which the hearing or trial is to be held. A subpoena for attendance at a deposition shall issue from the court for the district designated by the notice of deposition as the district in which the deposition is to be taken. If separate from a subpoena commanding the attendance of a person, a subpoena for production or inspection shall issue from the court for the district in which the production or inspection is to be made.

Because subparagraph (a)(2) has been construed by the Advisory Committee On Civil Rules (“Advisory Committee”) to give courts the power to subpoena documents located outside of the forum district, the question arises: Does this amendment grant a federal court the power to subpoena materials located in foreign countries? The extent of the reach of Rule 45(a)(2) is a topic of particular importance to large international corporations with both domestic and foreign branches. This chapter addresses the issue of whether a subpoena duces tecum issued pursuant to Rule 45 and served on a domestic branch of a corporation with branches outside the United States may properly reach documents in the custody or control of the corporation located outside the United States. The answer to this question is, at the present time, uncertain.