Nonparty discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 207-234

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PrePare subPoenas task 40

CHAPTER 7: NONPARTY DISCOVERY

TASKS

Task 40 Prepare Subpoenas

Task 41 Challenge Subpoenas

Task 42 Enforce Subpoenas

Task 43 Produce and Inspect Nonparty Documents

FORMS

Form 12 Subpoena

Form 13 Responses and Objections to Subpoena

Form 14 Motion

TASK 40

Prepare Subpoenas

I. WHAT AND WHY

A. To prepare for trial, you may need to:

1. Obtain documents or electronically stored

information (ESI) in a nonparty’s custody or control.

2. Depose a nonparty.

3. Inspect a nonparty’s premises.

B. Nonparties may voluntarily comply with your

discovery requests. However, to compel compli-

ance, you must serve a subpoena on the nonparty

pursuant to FRCP 45(a)(1)(a), (b). See Bueker v.

Atchison, Topeka & Santa Fe Ry., 175 F.R.D. 291,

292-93 (N.D. Ill. 1997) (denying motion to compel

continuation of expert witness deposition termi-

nated by expert when expert had never been served

with subpoena).

C. Typical nonparty documents include:

1. Medical records.

2. Government and regulatory records.

3. Employment files.

4. Eyewitness reports.

5. Education records.

6. Construction drawings, plans and reports.

D. Pursuant to FRCP 26(b)(1), you may subpoena

only records that are relevant, not privileged, and

admissible or reasonably calculated to lead to the

discovery of admissible evidence. You may not

compel a non-party to create documents that do

not exist. See Insituform Techs. v. Cat Contracting,

168 F.R.D. 630, 633 (N.D. Ill. 1996).

E. FRCP 45(d)(1) places an affirmative duty on both

you and your client to take reasonable steps to

avoid imposing undue burden or expense on the

nonparty. The court for the district where compli-

ance is required must enforce this duty and impose

appropriate sanctions including the nonparty’s lost

earnings and reasonable attorneys’ fees on a party

or attorney who fails to comply.

F. A subpoena is not necessary to compel the deposi-

tion of a corporate party’s officers, directors or

managing agents. See FRCP 30(b)(6). However,

a subpoena is necessary to compel a corporate

party’s other employees to appear for deposition.

Memory Bowl v. North Pointe Ins. Co., 280 F.R.D.

181 (D.N.J. 2012) (non-officer claims adjusters);

Shawnee Holdings, Inc. v. Travelers Indemnity

Co. of America, 57 Fed Rules Serv. 3d 988 (MD

Pa 2004). A subpoena is also necessary to compel

former corporate employees to appear for deposi-

tion. Simms v. Center for Correctional Health and

Policy Studies, 272 F.R.D. 36 (D.D.C. 2011).

G. A nonparty may serve a subpoena to obtain his own

prior statement concerning an action or its subject

matter. See Elam v. Ryder Automotive Operations,

179 F.R.D. 413, 415-16 (W.D.N.Y. 1998).

H. Rule 45 specifically permits you to request pro-

duction of electronically stored information from

third parties by subpoena. You may also request to

inspect, copy, test, or sample ESI in any medium

from which information can be obtained, translated,

if necessary, by the responding party into reason-

ably usable form. Your subpoena may specify the

form in which ESI is to be produced. The producing

party is entitled to object to the form. If objection is

made, or if your subpoena does not specify a form,

the producing party must state the form it intends to

use and must produce the information in a form in

which it is ordinarily maintained or in a reasonably

usable form.

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task 40 nonParty Discovery

II. WHEN

A. Attempt to obtain discovery from nonparties as

soon as you attend the FRCP 26(f) initial meeting

(Tasks 20-22) and become aware of evidence you

need. For the following reasons, the sooner you

serve a subpoena, the better:

1. Once you serve a subpoena, obtaining records

can take a long time, especially if the records

are old or in the custody of the government or a

company with an unsophisticated filing system.

2. Nonparties often fail to take a subpoena seri-

ously and respond slowly.

3. Nonparties may have evidence leading to other

important evidence, thus requiring more time

to complete your discovery.

4. By serving a subpoena early, you have time to

respond to objections or motions for protective

orders and file motions to compel.

B. Give the nonparty a reasonable time to respond to

the subpoena. FRCP 45(c)(3)(A). The appropriate

length of time varies with the particular circum-

stances. For example, give more time when you

request a large volume of old archived documents.

C. Parties may stipulate in writing to modify the non-

party’s response deadline, provided the extension

does not interfere with any time set for completing

discovery, a hearing or trial. FRCP 29.

D. The Private Securities Litigation Reform Act’s

automatic stay of discovery during pendency of a

motion to dismiss may, on motion, be lifted to per-

mit service, but not enforcement, of subpoenas on

nonparties to put them on notice of the litigation

and the need to preserve relevant evidence. See In

re Grand Casinos, Inc., Secs. Litig., 988 F. Supp.

1270 (D. Minn. 1997) (lifting stay).

E. In an appropriate case, you may obtain expedited

discovery from a nonparty. In U.M.G. Recordings,

Inc. v. Does 1-4, 64 Fed. Rules Serv. 3d 305 (N.D.

Cal. 2006), a copyright infringement case, the

court ordered expedited discovery of a nonparty

internet service provider to permit plaintiff to dis-

cover information identifying persons conducting

infringing activity online so that they could be

served with process. The court noted that plaintiff

had no other way to identify the Doe defendants;

ISPs usually maintain user activity logs only for

a short time, and plaintiff had already suffered

irreparable harm as a matter of law when its right

to exclusive use of the copyrighted material was

invaded. Compare North Atlantic Operating Co.,

Inc. v. Evergreen Distributors, LLC, 298 F.R.D.

363 (E.D.N.Y. 2013) (vague reference to ship-

ping label allegedly pertinent to distribution of

counterfeit goods insufficient to demonstrate good

cause for prediscovery subpoena to third parties

named on shipping label; plaintiff did not establish

that subpoena would lead to identifying additional

defendants or relevant information; other means

existed to investigate third parties’ relationship to

named defendants).

III. HOW

A. Determine whether you need evidence in a non-

party’s custody or control to help you understand

or prove your case.

1. Review your annotated proof of fact (Task 4)

for the evidence you need to prove the ele-

ments of the claims and defenses.

2. Contact your client and discuss the evidence

you need to establish your case. Clients often

know whether a nonparty has certain records

or information.

3. If you are not sure whether a nonparty has

certain evidence, try to identify and contact the

nonparty’s records custodian through its legal

department or counsel. However, you cannot

be certain whether evidence exists until you

actually receive it.

B. Decide whether to depose the nonparty, request

records, or both.

1. If you decide to request records without a depo-

sition, you save your client deposition costs.

2. Deposing a nonparty may lay a foundation to

qualify records as business records under FRE

803(6) and allow them into evidence without

further authentication or hearsay objections.

3. If the nonparty resides more that 100 miles from

the place of trial or hearing, you cannot sub-

poena the nonparty for trial, except under limited

circumstances. FRCP 45(c)(1). In that case, you

may wish to depose the nonparty and use the

deposition in lieu of testimony to authenticate

the records at trial. See FRCP 32(a)(4).

a. If the documents you request are business

records and the nonparty is a business entity,

make sure the person you depose qualifies as

the records custodian. See Task 35.

b. If not, in the subpoena, designate the

records custodian as the person you seek to

depose. See FRCP 30(b)(1).