Nonparty discovery

• Author: William M. Audet/Kimberly A. Fanady
• Pages: 251-284

HANDLING FEDERAL DISCOVERY

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.

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TASK 40 NONPARTY DISCOVERY

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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

proportional to the needs of the case. 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. 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) (or before, see FRCP 26(d)(2)) 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).

PREPARE SUBPOENAS TASK 40

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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 ordere d

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 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).

4. If you have time, review the records and then decide whether to take the deposition. You save your client

the deposition cost while leaving open the opportunity to depose the nonparty.

5. Consider requesting the records and arranging for the deposition, but advising the nonparty that you will

cancel the deposition if the nonparty produces records by a certain date. The nonparty will likely comply to

avoid the deposition.

C. Advise the nonparty or counsel that you intend to subpoena records, depose the nonparty or inspect premises.

Ask:

1. Where you should serve the subpoena.

2. To whom you should direct the subpoena. If you seek records from an entity, direct the subpoena to the

entity, not to the person the entity designates to testify. See FRCP 30(b)(6).

3. The name and address of the records custodian or other person who will testify on the nonparty’s behalf.

An entity must designate a knowledgeable person to testify on its behalf. FRCP 30(b)(6).