Nonparty discovery

AuthorWilliam M. Audet/Kimberly A. Fanady
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
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.
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.
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.
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
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
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).
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
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

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