Documents Subpoenas: Don’t Reinvent the Wheel

Lawyers who defend attorneys, accountants, engineers, architects, and other professionals in litigation are often contacted by their clients to assist in defending a third-party subpoena for “documents” with or without a deposition. Especially when the demand includes emails, text messages, and computer-archive “documents” where e-discovery techniques must be used, the client then is faced with a costly and burdensome task unrelated to any alleged wrongdoing on their own part. When you are asked to help, what can you do? The steps are relatively straightforward, but they can be devilishly difficult to track down under while under pressure to get a result in a short time frame.

First, identify the rules that govern the subpoena. It could be the Federal Rules of Civil Procedure (FRCP), state-court rules, administrative rules, or rules of specialized courts such as bankruptcy courts or the Tax Court. Most of these rules contain similar procedures, but they are not always easy to find. For instance, this type of situation is governed under the FRCP by Rule 45(d). The important parts of that rule to keep in mind are:

1. It requires a timely objection. Under Rule 45(d)(2)(B), objections must be served before the earlier of the due date for the production or 14 days after service. Get this on the calendar as soon as possible and don’t miss it. In view of the pressure on dockets throughout the country, many courts are unforgiving about the timing of objections, and important legal rights could be lost by failing to act on time.
2. The witness is entitled to be protected under certain circumstance. Under Rule 45(d)(3)(A)(iv), “On timely motion, the court for the district where compliance is required must quash of modify a subpoena that
   
   1. Does not allow a reasonable time to comply;
   2. Requires a person to comply outside the geographical limits in Rule 45(c);
   3. Requires production of privileged or other protected matter if no exception or waiver applies;
   4. Subjects the person to undue burden.”
3. There can be cost shifting if inaccessible electronically stored information (ESI) is sought. Under Rule 45(e) the obligations of the parties with respect to ESI are laid out; the most significant for your client will be in subparagraph (e)(1)(D) and provides that if the producing party on motion for protective order can “show that the information is not reasonably accessible because of undue burden or cost,” the court can either disallow the discovery or allow it and “specify conditions for the discovery.”

The focus then shifts to Rule 26(c) relating to protective orders, which provides that the court may, for good cause shown, protect a party from annoyance, embarrassment, oppression, or undue burden or expense, which includes “specifying terms, including time and place or the allocation of expenses, for the disclosure or discovery.” Because Rule 45(e) permits the party from whom discovery is sought to file a motion for protective order, Rule 26(c) provides the vehicle by which the court can “specify conditions for the discovery.”

Second, remember that the court is not going to just take your word for it when you claim a burden on behalf of your client. Courts almost universally require evidence of the existence of the burden and the cost of compliance. This can take the form of an evidentiary hearing with live witnesses and experts in major cases, but often is resolved by the submission of affidavits by the parties. In other words, you need to make sure that you have identified witnesses who can establish the burdens of complying with the request—first for deciding whether there really is a burden—then supply affidavits or testimony supporting the claim with affidavits attached to a motion for protective order.

Third, don’t forget to be professional. The old maxim about “better results with honey than vinegar” applies here. In other words, do not forget to call opposing counsel as soon as you feel comfortable with your facts to try to work something out. Indeed, several provisions of the rules, including the first paragraph of Rule 26, mandate good-faith conferences (or failed sincere attempts at them) before filing a motion.

If you still need help after following these suggestions, consider:

The Sedona Conference, Commentary on Rule 45 Subpoenas to Non-Parties, Second Edition. 22 Sedona Conf. J. 1 (2021).