Nonparty discovery

AuthorWilliam M. Audet/Kimberly A. Fanady
PrePare subPoenas task 40
Task 40 Prepare Subpoenas
Task 41 Challenge Subpoenas
Task 42 Enforce Subpoenas
Task 43 Produce and Inspect Nonparty Documents
Form 12 Subpoena
Form 13 Responses and Objections to Subpoena
Form 14 Motion
Prepare Subpoenas
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.
task 40 nonParty Discovery
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).
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).

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