In civil cases, whether it involves intellectual property or an employment dispute, essential information is often in the possession of individuals or companies that are not parties to the lawsuit. The Federal Rules of Civil Procedure allow for service of subpoenas to obtain discovery from nonparties. In practice, however, getting needed discovery from third parties can prove challenging. Here are some tips to master the process.
Know the Rules
Rule 45 of the Federal Rules of Civil Procedure governs nonparty discovery. Read it carefully. Under Rule 45, a court-issued subpoena is needed to command a nonparty “to whom it is directed to . . . attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody or control; or permit the inspection of premises[.]” Rules 33 (interrogatories), 34 (production of documents and things), and 36 (requests for admissions) pertain only to discovery by a party to the lawsuit from another party. Neither interrogatories nor requests for admission may be used to obtain discovery from a third party.
Rule 45(a)(1)(C) provides that a subpoena commanding attendance at a deposition can include a command to produce documents. Alternatively, the document requests can be listed in a separate subpoena. A deposition may not be necessary, for example, when seeking cell phone records from a communications provider or documents from an entity where the documents can be readily authenticated with a custodian of records declaration. But typically, testimony is needed from witnesses with percipient knowledge of key events.
When the subpoena requires a third party to appear at a deposition, it is essential to include a subpoena for that witness to also produce documents in the witness’s possession, custody, and control that pertains to the subject matter of his or her testimony. Before a subpoena that seeks production of documents is served on the person to whom it is directed, a notice and copy must be served on each party.
Do not wait until the final weeks of the fact discovery period to pursue third-party discovery. Obtaining third-party discovery often takes longer than expected. It can take weeks to negotiate production and deposition dates for nonparties. Typically, the parties will disclose any significant nonparty witnesses in the Rule 26(f) Joint Report [automatic Word download]. But sometimes nonparty witnesses are identified only as party discovery progresses.
A Rule 45 subpoena must be personally served. Locating the nonparty witness may take time and may even require some investigation. The witness may have changed jobs or moved. Once served, will the witness have his or her own counsel, or will he or she be represented by counsel for one of the parties? If the witness already has counsel, is counsel authorized to accept service of the subpoena on the witness’s behalf?
District courts typically set firm discovery deadlines in the case management schedule. If you have to request an extension to complete third-party discovery, you will need to persuade the court that you have been diligent in seeking the third-party discovery well before the deadline.
Get Documents Before the Deposition
The rules allow one deposition of a witness of no more than seven hours, unless otherwise agreed by the parties or ordered by the court. If you get documents after the witness has completed his or her testimony, it is unlikely that the court will grant a motion to reopen the deposition, especially if you did not ask for the documents before the deposition. Don’t risk it. Subpoena the documents at the same time the subpoena for testimony is issued and set a production date well in advance of the deposition. This will allow time to review the materials and prepare to question the witness, as well as time to resolve any motion to compel or motion to quash filed by the witness.
The FRCP allow for service of subpoenas to obtain discovery from nonparties. In practice, however, getting needed discovery from third parties can prove challenging.
Avoid Undue Burden on Nonparties
The scope of permissible discovery under Rule 45 is the same standard set out in Rule 26(b): Information must be relevant to the claims and defenses in the action and proportionate to the needs of the case. While the scope of discovery is broad for parties and nonparties alike, Rule 45(d)(1) provides particular protection for a person subject to a subpoena. A party or attorney issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” Further, a nonparty may serve written objections to the production requests either before the time for compliance or 14 days after service of the subpoena. If objections are made, then the party that issued the subpoena may move to compel compliance. The nonparty may move to quash or modify a subpoena. The court must quash or modify a subpoena that imposes undue burden on a person.
Be Strategic about What You Ask For
When preparing the subpoena, give careful thought to the requests for production. Anticipate objections and draft the requests accordingly. Avoid overly broad language. Carefully review the issues in the case and this witness’s involvement before requesting “All DOCUMENTS . . .” on a particular issue. It may be wiser (and less objectionable) to ask for “DOCUMENTS sufficient to show . . .” and then identify the specific issue. Include a temporal limitation on the requests. Identify the time frame of this witness’s involvement and ask for documents in and around that period. If three years of information will be sufficient, do not ask a nonparty to search for ten years of records or records spanning the nonparty’s entire career in a field. If the court has entered a protective order in the case, include a copy with the subpoena so that the witness understands that confidential information can be protected.
When representing a nonparty who moves to quash based on undue burden, it is critical that the witness show the specific nature of the burden that the subpoena imposes. Get a declaration outlining in as much detail as possible the time, expense, and disruption to the nonparty’s regular affairs that compliance with the subpoena would require.
When representing the party seeking to compel compliance with the subpoena, if it appears the nonparty’s objections have merit as to overbreadth or relevance, help the court help you by suggesting ways the subpoena can be modified to be less burdensome. Unless the subpoena is far afield in seeking information from the witness, there is a good chance that the court will require the nonparty to produce some of the requested documents in compliance with the subpoena. It is rarely an “all-or-nothing” analysis. To get what you need in third-party discovery, know the rules, start early, and be reasonable.
- Saran Q. Edwards, “Getting Paid to Comply with Rule 45,” Pretrial Prac. & Discovery (Mar. 30, 2020).
- Mark A. Romance, “Five Tips Representing Non-Party Served with a Subpoena,” Commercial & Bus. Litig. (Nov. 26, 2019).
- Nikonov v. Flirt NY, Inc., 338 F.R.D. 444 (S.D.N.Y. 2021).
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