October 7, 2025
Proposed changes to both the Federal Rules of Civil and Criminal Procedure (FRCP) could substantially impact subpoena response teams. The amendments, if passed, could result in more subpoenas arriving earlier in a case and covering a wider range of materials.
Here are some of the more substantive proposed changes.
The amendments expand when and how criminal subpoenas may be used. Currently, FRCP Rule 17 is primarily tied to trials, and many courts require pre-approval before a subpoena can be issued. The revised rule makes subpoenas available not only for trial but also for hearings on detention, suppression, sentencing, and probation revocation. This increases the contexts wherein third-party records may be requested.
Another important change is that most third-party subpoenas will no longer require advance court approval. This will allow defense attorneys to issue subpoenas directly (and ex parte), much as prosecutors already do. The only exceptions will be when local rule or court order require pre-approval, a defendant is proceeding pro se, or a subpoena seeks certain personal or confidential victim information, in which case court approval will still be required.
For decades, defense subpoenas were judged against the Nixon standard, a test from the 1974 U.S. v. Nixon case involving President Nixon’s Watergate tapes. That standard required defendants to prove, in advance, that the requested evidence would be admissible at trial. In practice, critics claimed this created an extremely high bar and limited the ability of defendants to obtain useful evidence. The proposed changes would replace that strict admissibility test with a “likely admissible” standard.
While the proposal broadens access, it also codifies safeguards. Subpoenas must 1) describe the requested material with reasonable particularity; 2) target materials likely in the recipient’s possession; and 3) perhaps most importantly, seek only information that is not reasonably available elsewhere. This last requirement is particularly useful for online platforms. Throughout the commentary, the committee notes that the changes are not meant to allow for subpoenas to be used as “tools for discovery” and “fishing expeditions.”
Although more modest, the committee has proposed amendments to FRCP Rule 45 that would also impact compliance teams. For example, the amendments would explicitly allow for service of process by certified mail, FedEx, and UPS, among others. Particularly in the current world of “remote first” companies, and thus the absence of traditional “mail rooms,” companies will need to be vigilant about tracking incoming requests.
The amendments would also explicitly allow the presiding judge to compel remote testimony of an individual outside the district in which the case is pending. This is currently an area of dispute. Additionally, the rule would be amended to protect subpoena recipients from needing to comply with requests in less than 14 days.
The proposed amendments still under review (interested parties have until February 16, 2026, to comment) represent the most significant change to subpoena practice in decades. While always good practice, compliance leaders, law enforcement response teams, and legal professionals should be prepared to revisit their subpoena response protocols, strengthen internal workflows, and ensure teams are ready to evaluate and respond under the new standards should these amendments be adopted.
