Third-Party Discovery: Getting What You Need

• Author: Karen L. Stevenson
• Pages: 18-19

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

Published in Litigation News Volume 47, Number 3, Spring 2022. © 2022 b y the American Bar Ass ociation. Reproduc ed with permission. A ll rights reserv ed. This information or an y portion there of may not be copied or dis seminated in any

form or by any means or sto red in an electronic da tabase or retrieval sy stem without the ex press writt en consent of the Amer ican Bar Associatio n.

n civil cases, whether it involves intellectual property

or an employment dispute, essential information is often

in the possession of individuals or companies that are

not parties to the lawsuit. The Federal Rules of Civil

Procedure allow for service of subpoenas to obtain dis-

covery from nonparties. In practice, however, getting needed

discovery from third parties can prove challenging. Here are

some tips to master the process.

Know the Rules

Rule 45 of the Federal Rules of Civil Procedure governs non-

party discovery. Read it carefully. Under Rule 45, a court-

issued subpoena is needed to command a nonparty “to whom

it is directed to . . . attend and testify; produce designated

documents, electronically stored information, or tangible

things in that person’s possession, custody or control; or per-

mit the inspection of premises[.]” Rules 33 (interrogatories),

34 (production of documents and things), and 36 (requests

for admissions) pertain only to discovery by a party to the

lawsuit from another party. Neither interrogatories nor

requests for admission may be used to obtain discovery from

a third party.

Rule 45(a)(1)(C) provides that a subpoena commanding

attendance at a deposition can include a command to pro-

duce documents. Alternatively, the document requests can be

listed in a separate subpoena. A deposition may not be nec-

essary, for example, when seeking cell phone records from a

communications provider or documents from an entity where

the documents can be readily authenticated with a custodian

of records declaration. But typically, testimony is needed

from witnesses with percipient knowledge of key events.

When the subpoena requires a third party to appear at a

Third-Party Discovery: Getting What

You Need

By Hon. Karen L . Stevenson, Litigatio n News Associate Editor

© Getty Image s

18 | LITI GATION SECTION

VIEW FROM THE BENCH