Responding to a Third-Party Subpoena

A subpoena is a demand to produce documents or to testify in connection with a legal proceeding.  In civil cases where a plaintiff is suing one or more defendants and seeking monetary damages, often the “parties” to the litigation – the people and entities formally named as plaintiffs and defendants – seek testimony and documents from non-parties, who are often referred to as “third-parties.”  These third-party subpoenas typically arise during the discovery phase of the case.  Discovery is the fact-gathering portion of civil litigation where the parties seek records and testimony to support their claims and defenses in the lawsuit.

If you receive a subpoena (and you are not a party to the case), or if you receive a subpoena in connection with a government investigation, it is important to be thoughtful in responding.  Ignoring the subpoena is not an option.  If you ignore the subpoena or fail to fully comply, you could be sanctioned by the court and ordered to pay money or, in extreme cases, held in contempt and potentially even jailed.  Conversely, failing to challenge the subpoena may have adverse consequences.  For example, it is not uncommon for a plaintiff to seek information from a third-party because the plaintiff is considering amending their complaint and adding that third-party as a defendant.

You should ensure that you comply with your obligations while minimizing the risk that you get dragged into the case as a party.

OBJECTING TO A THIRD-PARTY SUBPOENA

Subpoenas generally seek testimony or production of records in your possession – or both.  A subpoena seeking records or production of other materials are sometimes referred to in legalese as a “subpoena duces tecum.”  

If you are served with a subpoena duces tecum from a federal court, then the Federal Rules of Civil Procedure (FRCP) apply.  The federal rules specify that any objections to the subpoena must be made within 14 days of being served with the subpoena, and sometimes even sooner if the subpoena demands an earlier response. FRCP 45(d)(2)(B).  

In a state-court action, the deadlines for objections are different and vary based on the rules of the state at issue.  In California, objections are typically filed no later than three calendar days before the date the subpoena demands compliance.

If you do not serve objections in response to the subpoena by the correct deadline, then you may be deemed as having waived your right to do so and lose your opportunity to argue that the subpoena should be limited or not enforced at all.

In many cases, serving an objection on the issuing party with ample time for communication with the issuing party is an appropriate first step.  When you serve the issuing party with written objections, the burden of enforcing the subpoena shifts back to them.  In other words, the issuing party must file a motion to compel with the court in order to shift the burden of compliance back to you. If the court grants the motion, you must comply with the subpoena; however, it is possible that the court may only compel compliance with part of the subpoena. If the motion to compel is denied, you are not obligated to respond or comply.  Indeed, you may even be able to obtain money to help cover the cost of your legal fees.

In some instances, filing a motion for a protective order or a motion to quash is the best course of action.  These motions ask the court to order that the subpoena be limited or dismissed (“quashed”) altogether.  This can help reduce your exposure to liability and protect your privacy, reputation, and financial interests. However, this is typically not the most cost-effective way to challenge a subpoena. In addition, filing a motion with the court does not shift the burden back to the issuing party the way serving objections does.  Experienced attorneys, however, will explore whether another party to the case has an interest in quashing or modifying the subpoena and legal grounds to do so, which could result in that party paying the majority of the expense of drafting the motion papers.

Overbroad Subpoenas

Subpoenas that seek more records than the party is entitled to, or an unreasonably broad scope of records considering the nature of the claims in the case, are typically referred to as “overbroad” and “unduly burdensome.”  Unfortunately, they are common.  Indeed, it is an age-old tactic.  Many lawyers attempt to make their subpoenas as broad and burdensome as possible with little regard to the applicable legal standards.  They hope than an unrepresented third-party will assume the subpoena must be complied with as it is drafted, or if the third-party has a lawyer, they hope the broad subpoena leaves room for negotiation as to what is a more reasonable, narrow scope.

Most overbroad subpoenas have common characteristics.  For example, subpoenas that seek categories of records using language like “any and all,” or subpoenas that fail to place any date-based limitations on the requested documents, often fall into this category.  Some of the factors that courts consider when determining if a subpoena is overbroad, unduly burdensome, or not proportionate to the needs of the case include the cost and time required for compliance, the amount of documents that would be responsive to the request, the amount of money in controversy in the case, and whether the burden of production outweighs the likely benefit of the information.

Courts also expect the parties in a case to seek information and documents from each other before burdening third parties.  Here, the law comports with common-sense fairness.  For example, if there is a contract between the defendant and a third-party, a subpoena by the plaintiff to the third-party seeking a copy of the contract would often be inappropriate because the same document is available from the defendant in the case.

Overbroad or unduly burdensome subpoenas can create significant hardships for third-parties in terms of both time and money.  Overbroad requests can also risk the disclosure of proprietary and confidential information.  Worse, inadvertent disclosure of such information could even create exposure to legal liability for the third-party in some cases.

For these reasons, as a responding party you can object on this basis.  Common sense, and the law, supports it.   For example, the party issuing a subpoena is required to take reasonable steps to avoid compliance with the subpoena resulting in an undue burden or expense to the party producing the documents.  FRCP 45(d)(1).

The subpoena recipient can also object to the request based on a lack of relevance. In this case, the subpoena recipient may either serve written objections to the issuing party based on a lack of relevance of the documents requested to the issues in the lawsuit, or file a motion to quash the subpoena.  While all subpoenas involve a relevance requirement, as a practical matter courts often more closely scrutinize relevance of the records sought in third-party subpoenas when considering whether the subpoena is unduly burdensome.

The Expense Of Compliance

One serious concern for a third-party commanded to produce documents can be the significant costs associated with complying with the subpoena. Finding the documents, converting any paper records to digital format, storing them digitally, and reviewing them is usually more expensive than many individuals expect. Under the Federal Rules of Civil Procedure, the subpoena cannot create an undue financial hardship to the party required to comply. The issuing party has a legal obligation to avoid this, which may include covering some or all of the costs of compliance.  An experienced lawyer can help you negotiate shifting the costs of compliance back on to the issuing party and seek relief from the court if necessary.

How Can A Lawyer Help Me Respond To A Subpoena?

If you have received a third-party subpoena, contacting a knowledgeable and skilled attorney can help you assess your obligations and legal risks in responding, determine grounds for objecting to the subpoena, identify procedural deficiencies in the subpoena, comply with the subpoena, and potentially file a motion with the court seeking a ruling that the subpoena should be limited or not enforced at all.

At Delahunty & Nash LLP, our team of experienced litigators are highly adept at inspecting, responding to, and quashing subpoenas when appropriate.  We have a track record of successful and fair outcomes for our clients in this position. If you have been served with a third-party subpoena, contact our team today at (415) 891-6210 for a complimentary consultation of your case.

Patrick Delahunty

Patrick Delahunty is a former federal prosecutor with deep experience in resolving disputes. He advises individuals and companies in complex criminal, regulatory, and commercial litigation.