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.
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:
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.
- 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
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
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.