Third-Party Subpoenas

A powerful tool in civil litigation allows parties to a lawsuit access to non-litigants’ documents, testimony or properties. This month’s Legal Moment explores the basic parameters of Third-Party Subpoenas.

   With increasing frequency, parties involved in lawsuits are turning to non-litigants ‒ whether individuals or companies ‒ for information relevant to their lawsuits. That information may comprise documents, witness testimony, and even onsite inspections of property. The way litigants obtain such information is through so-called “third-party subpoenas” issued pursuant to either the state or federal version of Rule 45 of the Rules of Civil Procedure.

   Third-party subpoenas are typically issued to non-litigants by the attorneys representing one or the other party in the lawsuit. Although the attorney does not need get the Court’s permission prior to issuing the subpoena, Rule 45 does contain some provision meant to protect the subpoenaed nonparties from undue burden and other potential abuses of the subpoena process.

   How an individual or company respond to a third-party subpoena will depend on what is being requested by the subpoena. But whatever the limits of the ultimate response will be, the subpoenaed party has an initial, affirmative obligation to locate, identify and preserve all relevant, potentially responsive information pending resolution of any objections or motions regarding the permissible scope of the subpoena. In the context of requesting documents from a corporation, for example, this obligation requires the subpoenaed corporation immediately to issue what’s called a “litigation hold” to all potential custodians of responsive documents to prevent those custodians from intentionally or unintentionally destroying relevant documents in their possession.

   Rule 45 provides the subpoenaed party with the opportunity to object to producing some or all of the potentially-responsive documents within a designated time frame (10 days under the North Carolina rules; 14 days under the Federal rules). Once faced with such an objection, if the subpoenaing party insists on pursuing the request for information, it must then prepare and file a motion to compel compliance and seek a Court order.

   In contrast to documents, if the subpoena seeks the testimony of a witness at a deposition, hearing or trial, the timely service of written objections by the subpoenaed nonlitigant does not excuse the individual or company’s appearance. Instead, the objecting party must seek a protective order from the Court before the time and date of the noticed event. The fact that objections were served is no excuse for failure to attend that event.

   A subpoenaed party may also challenge a third-party subpoena by moving for a protective order or to quash the subpoena outright. A motion for protective order or to quash is focused on the subpoena itself and seeks to prevent or modify its enforcement. Generally, a motion to quash or to seek a protective order are based on the following objections:

Insufficient Time to Comply: A subpoena may be quashed or modified if it does not provide a reasonable amount of time to comply.
Exceeds Geographical Limits: A non-litigant may only be required to attend a hearing, deposition, or trial, or produce documents or other tangible things within 100 miles of where the non-litigant “resides, is employed, or regularly transacts business in person.”
Seeks Disclosure of Protected Information: If the subpoena seeks information that is protected by privilege or other legally-recognized exceptions to compelled disclosure.
Imposes Undue Burden: The court may also quash a subpoena if complying with it would subject a non-party to undue burden. However, courts require the subpoenaed party to demonstrate that the burden complying would be extraordinary.
Seeks the Opinion or Knowledge of an Unretained Expert: A court may quash a subpoena if it is being used as a means to obtain an expert’s opinion or knowledge without paying that expert for his or her services.

      The most efficient and cost-effective means of responding to a third-party subpoena is to seek resolution of the request on an informal basis. Many times, the party serving the subpoena will work with the subpoenaed party to avoid the costs of litigating objections or motions to quash or for protective order.

   Rule 45 requires a subpoenaing party to take reasonable steps to avoid imposing undue burden or expense on the person or company subject to the subpoena. Courts may require that the expenses of production be borne by the subpoenaing party. In federal court, the presumption is that the responding party must bear the expense of complying with discovery requests unless the expense is significant. Subpoenas issued in a state court matter or under a state statute may shift the costs of compliance to the requesting party. While different jurisdictions may have different cost-shifting rules, it is clear is that “undue burden” for purposes of nonparty discovery does not mean no burden at all. The protection offered by many courts is merely to narrow or tailor the requests, or to quash the subpoena as too broad. It will be the responsibility of the subpoenaed party to demonstrate that it has no connection to, or interest in, the litigation and provide detailed affidavits substantiating the anticipated cost and burden. Further, proposing modifications to the requests, rather than establishing an absolute position, is more likely to achieve some modification.

   Third-party subpoenas are becoming more prevalent in litigation. Individuals or companies served with a third-party subpoena must determine if the services of legal counsel will be necessary. When it is obvious that simply responding to the subpoena will cause little or no disruption, and will not risk disclosing confidential or proprietary information, the assistance of counsel may not be needed. However, where the rights of a third party may be implicated, confidential documents may be at issue or the subpoena itself is likely to be challenged on substantive or procedural grounds, retaining counsel is well-advised. Given the short time periods within which to object or seek court protection, the decision whether to retain counsel should be made very quickly.