Civil Subpoenas in Federal Court: Complying with Third-Party Subpoenas
By Erin E. Rhinehart
As discussed in “Successful Preparation and Service of Subpoenas,” discovery is a large part of a litigation associate’s workload. While there is strategy associated with the selection and service of third-party discovery, successfully responding and objecting to third-party subpoenas provides many opportunities for an associate to shine. In particular, successfully responding to subpoenas may limit a client’s exposure to unnecessary litigation, as well as offer associates a unique opportunity to gain client contact, develop client relationships, and provide a favorable outcome for the client in a relatively short time. This article provides guidance relating to compliance with third-party subpoenas served within the United States for civil cases pending in federal court.
Evaluate Whether Your Client Has Standing to Object
Generally, your client will have been the recipient of the subpoena, and standing to respond and object will not be an issue. However, if your client is a party to the underlying litigation and you received notice of the third-party subpoena on your client’s behalf, then there may be an issue as to whether your client has standing to object (and, if so, to what specifically your client may object).
The general rule is that a party lacks standing to quash a subpoena served on a third party, except as to claims of (1) privilege relating to the documents being sought, (2) an applicable privacy interest, (3) an applicable personal interest, or (4) an applicable proprietary interest. See, e.g., Windsor v. Martindale, 175 F.R.D. 665, 668 (D. Co. 1997); Halawani v. Wolfenbarger, No. 07-15483, 2008 U.S. Dist. LEXIS 100482, at *3 (E.D. Mich. Dec. 10, 2008). A party also has standing to enforce the court’s orders and rules when subpoenas issued to non-parties violate the court’s order or rule (e.g., scheduling orders, protective orders). The Hartz Mountain Corp. v. Channelle Pharma. Veterinary Prods. Mft. Ltd., 235 F.R.D. 535, 536 (D. Me. 2006) (finding plaintiffs had standing to enforce court’s scheduling order).
Know the Compliance Deadline
Federal Rule of Civil Procedure 45(c) governs a third party’s responses and objections to a subpoena. After a client receives a subpoena, the first item to review is the compliance date set forth in the subpoena. Close attention to deadlines is necessary because serving objections late—even by one day—may result in a waiver. Halawani, 2008 U.S. Dist. LEXIS 100482, at *12.
Rule 45(c)(3)(A)(i) requires only that the issuing party provide for a “reasonable time to comply” with a subpoena. What is “reasonable” depends on the circumstances of each case. Parrot, Inc. v. Nicestuff Distrib. Int’l, Inc., No. 06-61231, 2009 U.S. Dist. LEXIS 8528, at *10–11 (S.D. Fla. Jan. 26, 2009) (“[C]ourts make the determination of reasonableness on a case-by-case basis, considering factors at work in the given case.”); Fox v. Traverse City Area Pub. Schs. Bd. of Educ., No. 1:07-cv-956, 2009 U.S. Dist. LEXIS 18095, at *3–4 (W.D. Mich. Mar. 10, 2009) (citing various authority on what constitutes a “reasonable” time for subpoena compliance). Generally, third parties are provided 30 days within which to comply. Less time, however, may be specified, and it may be necessary to contact the issuing party to request an extension. If the issuing party is not receptive to negotiating an extension, then an objection and motion to quash the subpoena may be necessary. Fox, 2009 U.S. Dist. LEXIS 18095, at *2 (“Rule 45(c)(3)(A)(i) requires a court to quash or modify a subpoena that fails to allow a reasonable time to comply.”).
Preparation of Responses and Objections to a Subpoena Duces Tecum
Third parties have several options when responding to a subpoena duces tecum (i.e., a subpoena commanding the production of documents). Rule 45(c)(2)(B) provides that objections “must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” In other words, a third party must serve objections within 14 days of service of the subpoena; or, if less than 14 days is provided within which to comply, then prior to the time specified for compliance. Absent unusual circumstances and good cause shown, “[t]he failure to serve written objections to a subpoena within the time specified by Rule 45 typically constitutes a waiver of such objections.” Halawani, 2008 U.S. Dist. LEXIS 100482, at *11.
There are three common types of objections: 1) general objections applicable to each request, 2) procedural objections, and 3) substantive objections. Although general objections may overlap with more specific objections, it is important to include a list of general objections that may be repeated, as applicable, in a concise manner throughout the response to ensure that all potential objections are preserved. This practice also makes for a more efficient and thorough response.
An initial review of the subpoena should focus on whether there are any procedural defects. Although most defects in service must be cured for the subpoena to be enforceable, such defects almost always can be cured with comparative ease. Accordingly, it is worth considering negotiating a waiver of service defects to obtain additional time to comply with the subpoena.
Once you are confident that the subpoena was properly served and there are no procedural defects to cure, review the subpoena for substantive objections. Commonly cited objections include (1) privileged or confidential; (2) irrelevant; (3) vague, ambiguous, or overbroad; and (4) undue burden.
Privilege and confidentiality must be claimed for any documents or testimony commanded to prevent waiver of any potential privilege or confidentiality claim. Review any applicable protective orders provided with the subpoena. If none was provided, contact the attorney responsible for service of the subpoena and discuss whether there are any operative protective orders. If no applicable protective order is in effect, then evaluate whether a stipulated protective order may be needed or whether a motion for a protective order is necessary. Fed. R. Civ. P. 26(c)(1) (“any person from whom discovery is sought may move for a protective order . . . to protect a party or person from annoyance, embarrassment, oppression or undue burden or expense”). If it is necessary to claim privilege over any documents or testimony, then preparation and service of a privilege log is required. Minnesota Sch. Bds. Ass’n. Ins. Trust v. Employers Ins. Co., 183 F.R.D. 627, 630 (N.D. Ill. 1999) (“Courts interpreting Rule 45(d)(2) have held that a party claiming privilege may provide a privilege log within a ‘reasonable time’ as long as objections are asserted within the fourteen-day time frame.”).
Apart from privilege and confidentiality, all requests should be reviewed to ensure compliance with the relevancy rules set forth in Rule 26(b). “A request for discovery . . . should ordinarily be allowed unless it is clear that the information sought can have no possible bearing on the subject matter of the action.” Halawani, 2008 U.S. Dist. LEXIS 100482, at *13–14. Although understandably broad, all discovery—including third party discovery—has its limits.
Along with these possible objections, evaluate whether any requests are vague, ambiguous, or overbroad. Courts that have upheld objections based on over-breadth have sometimes predicated the ruling based on language such as “and all documents relating thereto.” Parrot, 2009 U.S. Dist. LEXIS 8528, at *18–19. Requests that create any undue burden on the recipient also are objectionable. Courts may evaluate several factors when considering whether the subpoena creates an undue burden on the recipient, including non-party status, whether the discovery is “unreasonably cumulative or duplicative,” whether the discovery sought is “obtain[able] from some other source that is more convenient, less burdensome, or less expensive” and whether the cost of the discovery outweighs its benefit. See, e.g., Fed. R. Civ. P. 26(b)(2)(C); Englar v. 41B Dist. Ct., No. 04-CV-73977, 2009 U.S. Dist. LEXIS 100949, at *16 (E.D. Mich. Oct. 29, 2009) (non-party status weighs in favor of a finding of undue burden); Watts v. SEC, 482 F.3d 501, 509 (D.C. Cir. 2007) (“The Rule 45 ‘undue burden’ standard requires district courts supervising discovery to be generally sensitive to the costs imposed on third parties”); Whitlow v. Martin, No. 04-CV-3211, 2009 U.S. Dist. LEXIS 96011, at *10 (C.D. Ill. Oct. 15, 2009) (refusing to sustain third party’s objection that documents sought may be obtained from more convenient alternative sources because no alternative source was identified).
Finally, requests for electronically stored information (ESI) have become the subject of much negotiation and litigation. If the subpoena commands the production of ESI, then review with your client, and their appropriate information technology personnel, the scope of any potentially responsive and relevant electronic information, as well as the procedure, time, and cost for retrieving and producing such ESI. Fed. R. Civ. P. 45(d)(1)(D); Whitlow, 2009 U.S. Dist. LEXIS 96011, at *14–15 (“[A] person responding to a subpoena need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost. However, the Court may order discovery from such sources if the requesting party shows a good cause, considering the limitations of Rule 26(b)(2(C).”) (internal quotations and citations omitted). Production of ESI can be time-consuming and costly. Paying close attention to what is being requested and negotiating with the requesting party over the payment of costs is essential to maintaining control over the production.
Preparation of Responses and Objections to Testimonial Subpoenas
Responding to a subpoena commanding the attendance of a witness to give deposition testimony may be less cumbersome than responding to a subpoena duces tecum. Often, responding to a testimonial subpoena will require only the resolution of any scheduling conflicts among the parties and the deponent. Nevertheless, a review of the subpoena for any procedural deficiencies, including payment of all applicable fees, should be conducted to ensure that service was proper and your client is subject to the subpoena. Otherwise, any objections will be waived. Also, Rule 45’s privilege and undue-burden standards, as discussed above, apply to both document and testimonial subpoenas alike and, therefore, should such objections be necessary, the same general rules apply. Watts, 482 F.3d at 508 (citation omitted)
If a testimonial subpoena is served on a corporation, then Rule 30(b)(6) also applies. A review of the areas of examination identified will probably require more substantial responses and objections, as well as assistance to the company in selecting the appropriate deponent to testify on the company’s behalf.
Evaluate the Need for a Motion to Modify or Quash the Subpoena
If the issuing party is unwilling to negotiate a more limited request for information or accommodate the needs of your client, or objections alone are insufficient to protect the recipient of the subpoena, then a motion to modify or quash the subpoena may be necessary. Extrajudicial efforts to resolve the dispute, however, should be exhausted prior to filing a motion to modify or quash. Rules 45(c)(3)(A) and (B), which govern motions to modify and quash, provide both mandatory and discretionary rules relating to when orders granting such motions are appropriate.
Regardless which subsection of Rule 45(c)(3) is used to file a motion, such motions may be required to be filed before the time set to comply with the subpoena, absent excusable delay. It is better practice to file the motion before the date set for compliance. Therefore, both a careful attention to detail, as well as a quick analysis, is necessary to respond successfully to subpoenas.
Finally, motions to quash or modify should be brought in the issuing court if different from the forum in which the underlying litigation is pending. Hartz Mountain Corp., 235 F.R.D. at 536 (holding that, even if the “14-days-after-service deadline imposed by Fed. R. Civ. P. 45(c)(2)(B)” applied to motions to quash, failure to meet deadline was excusable because such failure resulted from attempts to reach an extrajudicial agreement). As noted in Hartz Mountain Corp., it is within the discretion of the issuing court “to transfer motions involving the subpoena to the district court in which the action is pending;” or, to stay the motion pending a related resolution necessary by the other court. Usually, issuing courts are more receptive to motions to transfer or stay if the litigation surrounding the subpoena is between the two parties to the underlying litigation. If the non-party brought the motion to quash or modify, however, then the issuing court may be less likely to transfer or stay the motion.
Proper response to a third-party subpoena requires an efficient yet detailed analysis of the subpoena served. Therefore, the following checklist serves as a good reminder:
- Review the deadline for compliance.
- Review the subpoena and evaluate what it is requesting (e.g., documents, testimony or both).
- Prepare responses and objections.
- Evaluate whether a protective order may be needed.
- If there is a need for a protective order, or to limit the subpoena, then discuss with opposing counsel.
- If the meet-and-confer is unsuccessful, then evaluate whether to prepare a motion for protective order, motion to modify, or motion to quash.
Keywords: federal subpoenas, subpoena compliance, Rule 45
Erin E. Rhinehart is an associate at Faruki Ireland & Cox P.L.L. in Dayton, Ohio.