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Three Steps to Effective and Ethical Third-Party Discovery

Jeanne M Huey

Three Steps to Effective and Ethical Third-Party Discovery
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From international banks to local pharmacies, third parties routinely provide documents and testimony needed to prove a case. At the same time, many clients want to preserve relationships with some of these third parties for after the lawsuit is over. To best serve our clients' interests in winning and preserving relationships requires careful application of ethics rules, procedural rules, and good manners.

Step 1: Ask for What You Really Need

Every third-party request starts with a practical and ethical question: “Do I really need this information?” Is it crucial to your client’s case, or does the client have some other improper motive for wanting a deposition or documents from a third party? ABA Model Rule 4.4 uses the phrase “shall not” in forbidding discovery that has no purpose other than to embarrass, delay, or burden a third party. Using discovery to punish someone or to interfere with the opposing party’s professional relationships is not only unethical, but it is also usually a waste of money, imposing an unnecessary cost on our own clients for very little in return.

The Model Rules also require that we avoid unreasonably inflicting costs on the other parties (Rule 3.2). Pages and pages of boilerplate document requests to third parties are likely to garner very little valuable information and generate unnecessary fees and animosity all around. Many state and local procedural rules impose similar duties on third parties: Federal Rule of Civil Procedure 45(d)(1) requires the issuing party or attorney to avoid “imposing undue burden or expense on a person subject to the subpoena.” Failure to do so can result in sanctions. Unless the anticipated discovery is likely to have results that justify the burden on our own client and the third party, common sense and ethical obligations forbid it.

Step 2: Find Out Who, Where, and How Much It Will Cost

Second, if you are sure the evidence is useful, you still need to think about whom you should ask, how to ask, and what the cost might be. If you are going to subpoena or contact a witness in their professional capacity (the local banker or school administrator, for example), you should assume that they are represented by counsel—the company’s in-house or other lawyer. Find out who that lawyer is and contact them before approaching the individual witness so that you do not risk starting off on the wrong foot. Making initial contact with counsel for a witness also ensures that there is not even the appearance of running afoul of the rule against communications with a person represented by counsel (Rule 4.2). If you are certain that a third-party witness is not represented by counsel, you and anyone in your office who may be dealing with the witness should always review and follow Rule 4.3, which requires that a lawyer dealing with an unrepresented third party make it clear that they are not disinterested, and correct any mistaken impression about their role. You must clearly state who you are, whom you represent, and why you are contacting the witness. If you are going to serve a subpoena, say so. If you or your staff try and soft-pedal why you are calling, you may generate resentment later when you serve a subpoena, and that resentment will likely hurt the quality of information you receive. For more on the intersection of Rules 4.2 and 4.3, see the discussion in ABA Formal Ethics Opinion 472.

Knowing in advance where to direct a subpoena is not only efficient for you and your client, but it may also garner the cooperation of the third party whose help you need. In making initial inquiries, find out about any policies or procedures that the third party has in place regarding the information you seek. This includes getting a good idea of any costs that may be passed on to your client. Many doctors and hospitals, for example, require that those seeking discovery pay the cost of responding to discovery requests up front. Procedures and costs of obtaining discovery from financial institutions are governed by state and/or federal law, and any business that your client subscribes to likely has a provision about obtaining records or testimony built into a membership or other agreement to which your client may be bound.

Knowing these procedures before you ask for testimony or documents, as well as knowing whether or how much your client is going be charged by the third party for your request, will also allow you to better determine if the information you seek is worth the time and cost involved. And always consider what notice you must give the third party and opposing counsel under the relevant policies or rules of procedure. Typically, third-party document requests must be served on all parties before any subpoena can be served on the third party. In most courts, failure to give this advance notice is also sanctionable.

Step 3: Mind Your Manners

Finally, remember what you learned as a child: It is always a good idea to treat others the way you would want to be treated. In addition to the ethics and procedural rules, most local bar associations and court rules require that lawyers treat everyone—including nonparties—with fairness and respect. And there is no reason not to. A truly hostile witness is very rare. Even those affiliated with a party will rarely put their reputation or professional license at risk by lying under oath or withholding documents properly requested. If it later turns out that the third-party witness has lied under oath or omitted documents on purpose, your good behavior in dealing with them will only put you in a better position to complain to the court and seek relief for your client should you need to do so.