Testifying expert witnesses typically develop their opinions by reviewing and inspecting documents, tangible things, and premises, pursuant to Rule 34 requests between parties to a lawsuit. But in some circumstances in expert discovery, a party may use a Rule 45 non-party subpoena to obtain relevant documents and electronically stored information (ESI). Below is a non-exhaustive list of pointers for Rule 45 subpoena practice in expert discovery, drawn in part from the Sedona Conference Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition (October 2020).
Considerations When Serving a Rule 45 Subpoena
Work with your expert to determine what they need to inform and/or bolster their opinions. Rule 45 subpoenas are typically reserved for relevant material over which neither the plaintiff nor defendant has “possession, custody, or control.” Generally, the pertinent interpretation of “possession, custody, or control” is the one applied by the court where compliance is required; subpoena-related motions are filed in that court. Fed. R. Civ. P. 45(d)(3). Under Fed. R. Civ. P. 45(f), a subpoena-related motion can be transferred from the court of compliance to the court where the action is pending “if the person subject to the subpoena consents or if the court finds exceptional circumstances.”) The Sedona Conference recommends conferring with your litigation opponent if you are unsure whether they have possession, custody, or control of specific material. If the documents your expert needs cannot be obtained through a Rule 34 request or otherwise, consider subpoenaing them from a non-party.
Additionally, you might subpoena documents from or about an opposing expert to use in that expert’s deposition. To determine which materials might be useful for those purposes, conduct extensive research on opposing experts, and work with your expert to review the opposing experts’ written disclosures, especially the CV and list of prior testimony.
Notice, Meet-and-Confers, Stipulations, and Timing
Rule 45 does not require a party to confer with the other parties or with the non-party subpoena recipient prior to serving a non-party subpoena. However, local rules may differ. And as the Sedona Conference notes, anticipated subpoena practice is a good topic for the Rule 26(f) conference.
Under Fed. R. Civ. P. 45(a)(4), you must serve a notice and a copy of the subpoena on each party before serving the non-party with the subpoena. The rule does not state how far in advance the notice must occur, but local rules may vary. The notice is intended to “enable[e] the other parties to object or to serve a subpoena for additional materials.” Fed. R. Civ. P. 45 advisory committee’s note to 2013 amendment. The subpoenaing party can move to compel at any point after objections are made, after notifying the subpoena recipient and attempting to confer. Fed. R. Civ. P. 37(a)(1); Fed. R. Civ. P. 45(d)(2)(B)(i).
The Sedona Conference explains that parties may be able to avoid non-party subpoenas by stipulating to authenticity and admissibility of various materials. Parties should also consider stipulating to things like whether certain categories of documents are off limits for non-party subpoenas, whether they will accept service for their experts, and whether certain categories of subpoenaed documents can be covered by the protective order in the case, if one exists.
Courts have quashed document subpoenas that seek to circumvent the discovery schedule. E.g., Buhrmaster v. Overnight Transp. Co., 61 F.3d 461, 464 (6th Cir. 1995). Therefore, within that schedule, serve your subpoena early enough that the subpoena recipient has “reasonable time to comply” before discovery closes. Fed. R. Civ. P. 45(d)(3). Additionally, set the compliance date far in advance of when you and/or your expert actually need the documents, factoring in the quantity of material requested and whether lengthy negotiations and/or motions practice may ensue.
Considerations if Your Expert Receives a Rule 45 Subpoena
Your Expert’s Objections
If your expert receives a subpoena, they must serve objections “before the earlier of the time specified for compliance or 14 days after the subpoena is served,” unless the subpoenaing party agrees to extend that deadline. Fed. R. Civ. P. 45(d)(2)(B). Typically, failure to timely serve objections results in waiver of those objections. Many courts have held that timely service of objections suspends the duty to comply with the objected-to requests until a court orders compliance. In addition to or instead of serving objections, your expert can move to quash or modify the subpoena. Fed R. Civ. P. 45(d)(3). (In general, courts have read the timeliness requirement to mean that motions to quash must be filed within the time for compliance specified in the subpoena. E.g., Martin v. Trott Law, P.C., No. 15–12838, 2016 WL 9450599, at *3 (E.D. Mich. Dec. 22, 2016) (citing cases).)
Review the subpoena with your expert carefully, and ensure that they take reasonable steps to preserve responsive material, regardless of objections or motion practice. Beware of requests for information that Rule 26 protects from disclosure, such as draft expert reports (including from the expert’s prior engagements). Moreover, if the requests seek material from the expert’s prior expert engagements and/or material that may be protected by a non-disclosure or confidentiality agreement, ensure that whoever retained your expert on those matters is aware of the subpoena. They may wish to serve objections, and they likely need to work with you and the expert to ensure that they do not produce protected materials.
Your expert should consider retaining their own counsel with respect to the subpoena. If they work for a consulting firm, their employer may have counsel to represent them. With your expert and their counsel, consider negotiating with the subpoenaing party on the scope of the requests and the time for compliance. You should also review all documents prior to the subpoena production, particularly where your client may have privilege and/or work-product claims.
Your Client’s Objections
Your client typically has standing to challenge a subpoena to its expert only to protect a privilege or personal right with respect to the requested material. E.g., Smith v. Midland Brake, Inc., 162 F.R.D. 683, 685 (D. Kan. 1995). If such concerns exist, your client should serve objections by the Rule 45(d)(2)(B) deadline. However, those objections do not suspend the expert’s duty to comply with a subpoena—that would require a motion to quash or modify the subpoena, and/or a motion for a protective order. Conversely, if your client is able and willing to produce the requested material, it should notify the subpoenaing party that it will make the production, and request that the subpoena be withdrawn.
Learning the intricacies of Rule 45 allows you to use the subpoena power to obtain relevant documents and ESI from non-parties to use in expert discovery. It can also help you to protect your client if a non-party receives a subpoena for materials over which your client claims privilege or other personal right.
Kate Perkins is an associate with Hunton Andrews Kurth in Charlotte, North Carolina.
Copyright © 2021, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Litigation Section, this committee, or the employer(s) of the author(s).