November 29, 2019 Practice Points

Five Tips for Representing a Non-Party Served with a Document Subpoena: Welcome to the Party?

Federal rules concerning subpoenas to non-parties can be tricky. Do you know the rules?

By Mark A. Romance

Your client has no claims and has not been sued but nevertheless receives a subpoena for documents in a litigation in which it has no stake. While the Federal Rules of Civil Procedure primarily focus on rights and obligations of parties, Rule 45 permits parties to serve a non-party with a subpoena for production of documents. That same rule affords the non-party with certain rights and obligations. Here are the top five considerations when representing a non-party who receives a subpoena for production of documents.

  1. Which Court Issues the Subpoena? Rule 45(a)(2) provides that the court where the action is pending issues the subpoena, even if the recipient is not located in that jurisdiction. A non-resident non-party cannot, however, be compelled to produce documents in the jurisdiction where the action is pending. Instead, compliance occurs in the state where the person resides, or within 100 miles of where the person resides.
  2. When Are Objections Due? A subpoena must command the recipient to produce documents at a specific time. However, Rule 45(d)(2)(B) requires the recipient to serve written objections before the earlier of the date of compliance or 14 days after service of the subpoena. Objections are usually due well before the date of production. Objections not served within the 14-day deadline are waived.
  3. Who Resolves Objections? The district court where compliance is required has jurisdiction to resolve objections. The serving party must file its motion to compel in the court where compliance is required. Rule 45(d)(2(B)(i). Similarly, the subpoena recipient may file a motion to quash or modify the subpoena in the court where compliance is required. However, Rule 45(f) permits the court where compliance is required to transfer a motion to compel or for protective order to the issuing court “if the person subject to the subpoena consents” or “if the court finds exceptional circumstances.” The phrase “exceptional circumstances” enjoys a very broad interpretation, including, for example, situations where the issuing court has in-depth knowledge of the issues in the case and has invested substantial time resolving related discovery issues.
  4. Relevance. It may seem awkward to object to a subpoena on relevance grounds in a case in which the recipient is not a party. However, the non-party has the right to object on relevance grounds to avoid production. The standard for relevance in Rule 26 applies to a subpoena to a non-party.  However, courts have routinely held that “it is a generally accepted rule that standards for non-party discovery require a stronger showing of relevance than for party discovery.” See, e.g., Pinehaven Plantation Prop., LLC v. Mountcastle Family LLC, No. 1:12-CV-62, 2013 WL 6734117 (M.D. Ga. Dec. 19, 2013). Similarly, the First Circuit has held that: “[i]t is also noteworthy that the respondents are strangers to the . . . . litigation; insofar as . . . they have no dog in that fight. Although discovery is by definition invasive, parties to a lawsuit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.” Cusumano v. Microsoft Corp., 162 F.3d 708, 717 (1st. Cir. 1998). Rule 26(b)’s proportionality limitations also apply equally to subpoenas to non-parties.
  5. Undue Burden. Subpoena recipients often object on the ground that compliance with the subpoena is unduly burdensome and expensive. Rule 45(d)(1) requires parties issuing a subpoena to “take reasonable steps to avoid imposing an undue burden or expense on a person subject to the subpoena.” Fed. R. Civ. P. 45(d)(1). Additionally, Rule 45(d)(2)(B)(ii) requires an order on a motion to compel or for protective order to “protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.” Rule 45(d)(3)(A)(iii) provides that the court may quash or modify a subpoena if it “subjects a person to undue burden.” Courts evaluating an undue burden challenge require an evidentiary basis to limit the subpoena. Typically, the objector presents evidence in the form of a sworn declaration, which provides details as to why compliance would be burdensome or expensive. The declaration must be served either with the objections or with the first filing in the court where compliance is required.

Counsel for a non-party who receives a subpoena should focus immediately on the deadlines and requirements of Rule 45 to formulate objections and responses to the subpoena. While there are pitfalls for the unwary, Rule 45 provides all the tools necessary to effectively represent and protect a non-party who has been subpoenaed.

Mark A. Romance is a partner with Day Pitney in Miami, Florida.

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