Nonparty discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 211-240

7-1

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

compliance, 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 terminated 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. The scope of

discovery pursuant to a subpoena is the same as

the scope of discovery in general and the court

reviews the subpoena under the same relevancy

standards. IntegraMed America Inc. v. Patton, 298

F.R.D. 326 (D.S.C. 2014). 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

compliance 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

deposition 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 deposition. 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

production 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 reasonably usable form. Your subpoena may

specify the form in which ESI is to be produced.

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TASK 40 NONPARTY DISCOVERY

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.

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

seriously 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

circumstances. For example, give more time

when you request a large volume of old archived

documents.

C. Parties may stipulate in writing to modify the

nonparty’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 permit 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 discover 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 shipping 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

nonparty’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

elements 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

deposition, 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

subpoena the nonparty for trial, except under

limited circumstances. FRCP 45(c)(1). In that