Responding to a Subpoena Commanding Production or Inspection
If the subpoena commands your client to produce documents, ESI, or tangible items or to permit the inspection of a premises, then you have three options for defending. First, you can serve written objections to the subpoena pursuant to Rule 45(d)(2)(B). Second, you can move to quash or modify the subpoena pursuant to Rule 45(d)(3). Third, you can move for a protective order under Federal Rule of Civil Procedure 26(c). Importantly, per Rule 45(d)(2)(A), unless a person is also commanded to appear to testify at a deposition, hearing, or trial, then appearance is not required when commanded to produce or allow inspection.
Responding to a Subpoena Commanding Attendance at a Discovery Deposition or Trial
If a subpoena commands your client to appear for a discovery deposition, your defenses are limited to moving to quash under Rule 45(d)(3) or moving for a protective order under Rule 26(c). If a subpoena commands your client to appear for live trial testimony, you are limited to moving to quash. Courts are divided on whether a Rule 45 subpoena can be used to command a corporate representative to testify live at trial. Compare Bd. of Regents, of the Univ. of Tex. Sys. v. Boston Sci. Corp., No. 1-18-cv-00392 (D. Del. Jan. 20, 2023) (“[T]he plain text of Rule 45 prohibits directing a subpoena to attend trial to a corporation.”), with Conyers v. Balboa Ins. Co., No. 8:12-cv-30-T-33, 2013 WL 2450108, at *2 (M.D. Fla. June 5, 2013) (requiring corporate party to “comply with [a Rule 45] subpoena by producing its corporate representative at trial”).
Written Objections under Rule 45(d)(2)(B)
Written objections to a subpoena for inspection or production must be served on the party or attorney named in the subpoena by the earlier of (1) the time indicated in the subpoena for compliance or (2) within 14 days of service. While any legally available grounds for objection are proper, objections typically will be based on privilege, relevance, or burden and expense of compliance. See 9 Moore’s Federal Practice: Civil § 45.41[c] (2022). Once a written objection has been served, the objecting party is excused from performance, absent a court order compelling compliance. See, e.g., Flatow v. Islamic Republic of Iran, 196 F.R.D. 203, 208 (D.D.C. 2000) (failure to produce could not be punished because nonparty timely objected to plaintiff’s subpoena). However, it may not always be procedurally necessary for the party that sent a third-party subpoena to file a motion to compel prior to the court entering an order. See Vetstem Biopharma, Inc. v. Cal. Stem Cell Treatment Ctr., Inc., No. 2-19-cv-04728 (C.D. Cal. Jan. 25, 2023) (not necessary to file a motion to compel where parties had been actively litigating discovery issue and third party was an affiliated entity of one of the parties).
Motion to Quash or Modify under Rule 45(d)(3)
For a motion to quash to be considered “timely” under Rule 45(d)(3), courts typically require that the motion be filed before the date specified in the subpoena for compliance. See, e.g., Innomed Labs, LLC v. Alza Corp., 211 F.R.D. 237, 240 (S.D.N.Y. 2002) (motion to quash should be brought before noticed date of deposition commanded by subpoena). Under Rule 45(d)(3)(A), the proper court to bring a motion to quash or modify is the court for the district where compliance is required, which may or may not be the same as the court where the case is pending.
There are four grounds for moving to quash for which the court must grant the motion: (1) when the subpoena provides an unreasonable time for compliance, (2) when the subpoena requires a person to travel beyond the 100-mile limit set out in Rule 45(c), (3) when the subpoena seeks privileged or other protected material, and (4) when the subpoena subjects a person to undue burden. Fed. R. Civ. Proc. 45(3)(a).
Rule 45 does not define unreasonable time for compliance; however, courts tend to hold seven days or less as unreasonable, and 14 days or more as presumptively reasonable. See Verisign, Inc. v. XYZ.com, LLC, C.A. No. 15-mc-175-RGA-MPT, 2015 WL 7960976, at *3 (D. Del. Dec. 4, 2015). Rule 45(c)(1)(A) provides that a subpoena can only command a person to testify within the state or within 100 miles of where the person resides, is employed, or regularly transacts business in person. Courts generally find that the 100-mile rule for document production in Rule 45(c)(2)(A) does not apply when documents can be sent electronically or mailed and the subpoena does not require personal appearance. See, e.g., United States v. Brown, 223 F. Supp. 3d 697, 703 (N.D. Ohio 2016); Crescom Bank v. Terry, 269 F. Supp. 3d 708, 712–13 (D.S.C. 2017).
When addressing whether the subpoena imposes an “undue burden” on a party, courts typically evaluate some or all of the following factors: (1) relevance of the request, (2) the need of the party for the documents, (3) the breadth of the document request, (4) the time period covered by the request, (5) the particularity of how the documents are described, (6) the burden imposed, and (7) the subpoena recipient’s status as a nonparty. See In re Novo Nordisk Sec. Litig., 530 F. Supp. 3d 495, 501 (D.N.J. 2021).
Additionally, Rule 45(d)(3)(B) provides two grounds for when a court may quash or modify a subpoena: (1) when compliance with the subpoena would require disclosing a trade secret or other confidential research, development, or commercial information; or (2) when compliance would require disclosing an unretained expert’s opinion.
Motion for Protective Order under Rule 26(c)
For all discovery-related subpoena commands (i.e., not trial testimony), you have the option of moving for a protective order pursuant to Rule 26(c). While protective orders could have their own article, we will briefly go over the basics here. First, Rule 26(c)(1) requires that you meet and confer with the party that sent the subpoena before filing a motion for protective order, and that you certify to the same when filing. Second, there is no set time in the rule for when you must file a protective order; however, a motion for protective order will be deemed timely filed if done before the time for producing discovery set in the subpoena. United States v. Panhandle E. Corp., 118 F.R.D. 346, 350 (D. Del. 1988) (motion untimely when filed approximately one month after documents were supposed to be produced). Lastly, the motion can be filed in either the district where the case is pending or, if being filed in response to a deposition, the district where the deposition is taking place. Fed. R. Civ. Proc. 26(c)(1).
When you have received a subpoena, pay close attention to what the subpoena is commanding as it will determine what defenses are available to you. Additionally, pay close attention to the date for compliance as failure to respond to the subpoena can result in sanctions for contempt of court.
Andrew L. Brown is an associate at Potter Anderson & Corroon LLP in Wilmington, Delaware.