CHAPTER 13 - 13-4 Nonparty Production Requests Without a Deposition

• Jurisdiction: United States

13-4 Nonparty Production Requests Without a Deposition

Texas Rule 205.3 governs a nonparty's production of documents and tangible things without a deposition. To obtain such material from a nonparty without a deposition, the requesting party must serve (1) the nonparty and all other parties with a notice,²¹ and (2) the nonparty with a subpoena.²²

13-4:1 Service of the Notice

Under Texas Rule 205.2, "[a] notice to produce documents or tangible things under [Texas] Rule 205.3 [without a deposition] must be served at least 10 days before the subpoena compelling production is served."²³ The 10-day notice requirement's purpose is to give the other parties time to seek protection from the requested non-party production.²⁴ Without the notice requirement, a nonparty who received a notice and subpoena simultaneously might immediately produce its documents even if the subpoena did not require immediate production simply to be finished with the matter, thereby depriving the other parties of their right to move for protection with respect to the production request.

Both the notice and subpoena for a nonparty production request without a deposition must be served no later than thirty days (and in some cases thirty-one or thirty-three days) before the discovery period ends.²⁵ Texas Rule 205.3 also requires that service be "a reasonable time before the response is due."²⁶ Of course, what constitutes a "reasonable time" will depend on the facts of the case.

Texas Rule 205.3 does not indicate how the notice must be served on the nonparty. Because Texas Rule 21a applies to "[e]very notice required by" the civil procedure rules,²⁷ compliance with one of Texas Rule 21a's service methods should suffice.²⁸

Unlike written-discovery requests under Texas Rules 196, 197, and 198 (i.e., production requests, interrogatories, and requests for admission, respectively), the notice and subpoena must be filed with the trial court.²⁹

13-4:2 The Notice's Contents

The notice's contents are set forth in Texas Rule 205.3(b), which requires the notice to "state: (1) the name of the person from whom production or inspection is sought to be compelled; (2) a reasonable time and place for the production or inspection; and (3) the items to be produced or inspected[.]"³⁰ Each item in the notice must be "described" either individually or by category and "with reasonable particularity[.]"³¹ These requirements are identical to those in Texas Rule 196.1(b),³² which relates to production requests to parties, and the principles regarding them apply to Texas Rule 205.3 production requests.³³ Of course, the general rules regarding discovery's scope also apply to Texas Rule 205.3 production requests.³⁴

13-4:3 The Subpoena

Texas Rule 176 governs the form and other requirements of the subpoena compelling the production of the documents and other tangible things.³⁵

13-4:3.1 The Subpoena's Form

Texas Rule 176.1 specifies the subpoena's form. It "must be issued in the name of The State of Texas'" and "state:" (1) the action's style and number; (2) the court in which the action is pending; (3) the subpoena's issuance date; and (4) that the subpoenaed nonparty is to produce and permit inspection and copying of the designated documents and tangible things in its possession, custody, or control, at a specified time and place.³⁶ In addition, the subpoena must identify the person subpoenaed and the party and its attorney, if any, at whose instance the subpoena was issued.³⁷ Finally, the subpoena must be signed by the person issuing it and contain the text of Texas Rule 176.8(a),³⁸ which provides that "[f]ailure by any person without adequate excuse to obey a subpoena served upon that person may be deemed a contempt of the court from which the subpoena is issued or a district court in the county in which the subpoena is served, and may be punished by fine or confinement, or both."³⁹ The production requests in the subpoena must be identical to those in the earlier-served notice.

13-4:3.2 Persons Who Can Issue the Subpoena

Under Texas Rule 176.4, an attorney, a court clerk, and "an officer authorized to take depositions in this State" (i.e., a court reporter) can issue subpoenas.⁴⁰

13-4:3.3 Service of the Subpoena

Texas Rule 176.5 allows a sheriff, constable, or any person who is at least eighteen years of age and is not a party to the action to serve the subpoena "at any place within the State of Texas."⁴¹ Thus, a party's attorney can both issue and serve a subpoena.⁴²

The subpoena "must be served by delivering a copy to the witness and tendering to that person any fees required by law."⁴³ It can require the nonparty's production of documents and things "in a county" that is not more than 150 miles from where the nonparty "resides or is served."⁴⁴ Thus, for example, if the action is pending in Dallas County, and the subpoenaed nonparty lives 175 miles from the Dallas County courthouse, but within 150 miles of the Dallas County line, the nonparty can be required to produce its documents in Dallas County.

Under Texas Rule 176.5, proof of the subpoena's service must be filed with the trial court.⁴⁵

13-4:4 Response to the Notice and Subpoena

A nonparty served with a notice and subpoena for the production of documents and other tangible things without a deposition must respond to them in accordance with Texas Rule 176.6.⁴⁶ Under Texas Rule 176.6(c), the nonparty can, but need not, appear in person at the production.⁴⁷

With respect to the documents and other tangible things requested by the notice and the subpoena, the nonparty has three options. First, it simply can comply with the request and produce the requested documents and other tangible things at the time and place specified in the subpoena. In such event, the nonparty "must produce documents as they are kept in the usual course of business or must organize and label them to correspond with the categories in the demand."⁴⁸ Moreover, "[a] nonparty's production of a document authenticates the document for use against the nonparty to the same extent as a party's production of a document is authenticated for use against the party under Texas Rule 193.7."⁴⁹

Second, the nonparty, "before the time specified for compliance," can object to either the time or place specified for the production and/or the notice's and subpoena's production requests in whole or in part.⁵⁰ If the objection is to the time or place of the production, the nonparty should state a reasonable time and place for production.⁵¹ The objecting nonparty need not produce the documents or other tangible things that are subject to the objections unless the trial court orders it to do so.⁵² Permissible objections to a nonparty production request are the same as those to a party production request under Texas Rule 196 and include a lack of relevance, overbreadth, undue burden or expense, vagueness, ambiguity, and unreasonably cumulative or duplicative.⁵³ A nonparty that fails to timely object (or move for protection) generally waives its objections to the notice and subpoena.⁵⁴

Texas Rule 176.6(d), which sets forth the objection procedure, does not provide for privilege assertions. Texas Rule 193, which relates to "written discovery," however, does so.⁵⁵ Because the term "written discovery" does not include subpoenas,⁵⁶ arguably Texas Rule 193.3 does not apply to subpoenas served under Texas Rule 176. Nonetheless, Texas Rule 176.6(c) provides that a nonparty "may withhold material or information claimed to be privileged but must comply with [Texas] Rule 193.3[,]"⁵⁷ and Texas Rule 176.7 requires the trial court to provide the nonparty with "protection from disclosure of privileged material or information[.]"⁵⁸ Thus, a nonparty, who wants to withhold privileged material, should follow the withholding-statement procedure of Texas Rule 193.3.⁵⁹ If the requesting party requests the identification of the material withheld, the nonparty should follow the privilege-log procedure of Texas Rule 193.3(b).⁶⁰ Under Texas Rule 193.3, a nonparty who improperly interposes privilege objections to a production request instead of following the Rule's withholding statement procedure, does not waive the privilege...