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November 16, 2018 Articles

A Unified Theory of Standards for Third-Party Discovery

Special problems arise when nonparties hold relevant documents or information.

By Andrew J. Felser

Special problems arise when nonparties hold documents or information relevant to the parties’ claims or defenses. Some nonparties are prepared to handle the burdens of collecting and producing evidence. Hospitals, for example, have institutionalized records policies and records departments or have outsourced such responsibilities to others. Other large, well-established organizations may have similar resources. Individuals and smaller businesses do not and, to make matters worse, often lack any budget for unforeseen legal costs—costs that can rise swiftly after document or deposition subpoenas are served.

Most recipients of subpoenas are, at best, reluctant to incur much effort or expense to assist in a lawsuit to which they are not a party, especially if they have no material interest in the outcome of the case. And yet, in the words of an oft-cited maxim, “[t]he public has a right to every man’s evidence.”

That right, though, is tempered by legal privileges and civil discovery standards. See Simpson v. Univ. of Colo., 220 F.R.D. 354, 356 (D. Colo. 2004) (noting that limitations on the discovery process necessarily conflict with the “the fundamental principle that ‘the public … . . has a right to every man’s evidence’” (quoting Trammel v. United States, 445 U.S. 40, 50 (1980) (concerning testimonial privileges, to which the maxim is most often applied)). Those discovery standards are scattered throughout the Federal Rules of Civil Procedure—in particular, Rules 26, 30, and 45; they are not localized. This lack of unity creates unnecessary challenges, but the rules do have a discernible center of gravity and a methodology for their application.

The Center of Gravity

Two main rules govern discovery standards: Rules 26 and 45. Arguably, Rule 26 is the center of gravity.

Rule 45 is mostly procedural. First adopted in 1937 as Rule 46, it substituted an attorney-executed mechanism for previous practices that sometimes called upon a court to review and approve nonparty subpoenas in the first instance. See Henning v. Boyle, 112 F. 397 (C.C.S.D.N.Y. 1901). Rather than requiring court permission or even a clerk-generated subpoena in blank, the attorney of record can now issue and serve a subpoena under the imprimatur of any federal court in which the attorney is admitted to practice, after which it is the nonparty’s responsibility to seek relief if the subpoena is objectionable. Fed. R. Civ. P. 45(a)(3)–(d)(3). Even if the issuing attorney is reasonable during the conferral process, the nonparty’s legal costs alone can be considerable.

Rule 45 gives only the most general criteria for the proper scope of a subpoena and makes no explicit reference to Rule 26, other than in connection with the costly recovery of electronically stored information. Fed. R. Civ. P. 45(e)(1)(D). A subpoena must not, it states, impose an “undue” burden or expense. Fed. R. Civ. P. 45(d)(1), (3) (The subpoena also must allow a reasonable time to comply and must not require the disclosure of privileged or other protected matter, but those requirements are not the focus of this article.). Subsumed in Rule 45, therefore, are the considerations that govern all discovery. As one court has said and seemingly no court has disputed, “subpoenas . . . are discovery devices which, although governed in the first instance by Rule 45, are also subject to the parameters established by Rule 26.” Hume v. Consol. Grain & Barge, Inc., 2016 WL 7385699, at *2 (E.D. La. 2016) (internal citations omitted).

One might argue, though, that the scope of a subpoena must be governed in the first instance not by Rule 45 but by Rule 26(b)(1):

Unless otherwise limited by court order, the scope of discovery is as follows: Parties may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case, considering the importance of the issues at stake in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. Information within this scope of discovery need not be admissible in evidence to be discoverable.

Fed. R. Civ. P. 26(b)(1). This rule is the center of gravity for all discovery.

Third-party discovery causes all parties, not just the nonparty to whom it is directed, to incur additional time and expense. Rule 16 requires the court and the parties to confer about all discovery that is anticipated, and standard-form scheduling orders include provisions that address such matters. For these reasons—and because its implications would frustrate the purpose of decades-long efforts to limit discovery and its costs—there is no plausible argument that third-party discovery is somehow broader than what Rule 26(b)(1) allows.

Per Rule 26(b)(1), discovery to nonparties must be relevant to a claim or defense and proportional to the needs of a case. If a subpoena requests information or documents not relevant to a claim or defense, there should be little, if any, need to evaluate the burden on the nonparty. Thus, in Church Mutual Insurance Co. v. Phillip Marshall Coutu, an insurer carrier’s lawsuit for fraud and civil conspiracy, the court began its analysis with Rule 26(b)(1) and determined that a Rule 45 subpoena sought “a wide swath of information” that was irrelevant to the insurer’s claims. No. 17-CV-00209-RM-NYW, 2017 WL 4236318, at *6 (D. Colo. Sept. 25, 2017). In shrewd, backstopping fashion, the court also ruled that even if the information were relevant, the subpoena was overbroad as drafted.

Tipping the Balance

With relevancy and proportionality as the center of gravity, the proof shifting inherent in third-party discovery analysis comes more clearly into context. On a motion to quash as expressly permitted by Rule 45(d)(3), or a motion for protective order under Rule 26(c)(1), which “any person from whom discovery is sought” may file, the moving party must prove that the subpoena exacts an undue burden or expense. See Wiwa v. Royal Dutch Petroleum Co., 392 F.3d 812, 818 (5th Cir. 2004); Fed. R. Civ. P. 26(c)(1) (“good cause” required for protective order). Generalized or conclusory statements are insufficient to sustain that burden. MetroPCS v. Thomas, No. 3:18-MC-29-K-BN, 2018 WL 2933673 (N.D. Tex. June 12, 2018). Proportionality requires that any burden on the recipient, whatever it is proven to be, must be weighed against the extent to which the evidence is important or vital (or not) or can’t be obtained by other means, from other sources, or by any less expensive means. In D’Souza v. Marmaxx Operating Corp., for example, the court ordered an expert witness to produce only certain documents and information otherwise unavailable to the party that issued the subpoena, including some materials not required by the rules governing expert witness disclosures. No. EP-15-CV-00256-DCG, 2017 WL 1322243 (W.D. Tex. Apr. 7, 2017).

If an undue burden is found, Rule 45(e)(1)(D) either shifts the burden again or, more logically, creates a burden that is distinct from the “good cause” requirement of Rule 26(c): the requesting party must show good cause for the costly recovery of electronically stored information from a nonparty. To counter, that nonparty should file a motion to quash in addition to a motion for a protective order.

To the extent that the producing party has limited resources compared to the party that truly needs the documents or testimony, or to the extent that fairness may dictate, a court may also require the expenses of production to be shared or shifted. See In re Asbestos Prods. Liab. Litig. (No. VI), No. CIV. 10-83254, 2011 WL 6150640 (E.D. Pa. Dec. 9, 2011) (ordering the requesting party to share the cost of gathering and producing the records). The court’s discretion in that regard is part of what reconciles the proportionality and “undue burden” standards. Certainly, if a party wants to pursue a hypothetical or speculative claim that can be developed only with the aid of a nonparty deposition, the nonparty should be entitled, if the claim comes to nothing, to recover some or all of its costs of compliance. To build such an argument, however, one would need to compile the applicable sections from disparate subdivisions of the discovery rules.

Consolidation of Discovery Standards

Because the applicable factors are scattered throughout Rules 26, 45, and elsewhere (see, e.g., Federal Rules of Civil Procedure 30, 37) rather than localized in any one place, Rule 45 motions (and even some rulings) can look more like selections from a shopping list rather than the application of an integrated principle.

Add to that shopping list the potentially dubious nostrum that nonparties are entitled to greater protection than parties—see D’Souza v. Marmaxx Operating Corp.—and the possibility of distorted or inconsistent results can worsen. Subpoenas to third parties are most suitably a proportionality and cost-shifting issue. After all, not all third parties are created equal; some have a vested interest in the outcome of the case.

The consolidation of scope and proportionality considerations into Rule 26(b)(1) has helped, but there is room for improvement. Conceivably, the mechanics of Rule 45 can remain where they are, while the substantive limitations can be combined into a more unified set of discovery principles within Rule 26.

A model for this concept already exists at the state court level. Arizona’s Rule 26, which of course does not apply in federal courts, is titled “General Provisions Concerning Discovery.” It covers the following topics:

  • Discovery methods
  • Discovery scope and limits
  • Protective orders
  • Expedited procedure for resolving discovery and disclosure disputes
  • Determining whether electronically stored information is reasonably accessible
  • Timing and sequence of discovery
  • Supplementing and correcting discovery responses
  • Sanctions [“against a party or attorney who has engaged in unreasonable, groundless, abusive, or obstructionist conduct in connection with discovery”]
  • Requirement of good faith consultation certificate

16 Ariz. Rev. Stat. Rules of Civil Procedure, Rule 26.

However, this Arizona rule, which is devoted almost exclusively to general discovery standards, is not easily imported into the current, multipurpose federal Rule 26, particularly where individual judges want to preserve their own procedures for resolving discovery disputes. Despite the logistical challenges, centralized standards would be an improvement.


Third-party discovery standards remain more balkanized than they need to be. See Carl Tobias, A Civil Discovery Dilemma for the Arizona Supreme Court, 34 Ariz. St. L. Rev. 615 (2002). There is something of value in Arizona’s consolidation of substantive principles applicable to all forms of discovery. Absent a more user-friendly consolidation of third-party discovery standards, advocates and judges must apply Rules 26 and 45 in tandem. This article suggests that the threshold issues are relevancy and need. After those are determined, the extent to which there is a burden on the nonparty that should be eliminated, shared, or shifted can then more fully be determined as part of the court’s proportionality analysis.

Andrew J. Felser is the founder, owner, and director of Felser P.C. in Denver, Colorado.

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