A Publication of WTVP

An Introductory Analysis of How Non-Parties in a Lawsuit Should React When Served With a Discovery Subpoena

It is common for adverse parties engaged in commercial litigation to seek documents or testimony that may support their claims from outside sources not directly involved with their lawsuit. To obtain such information, litigants typically serve the outside source with a “third-party subpoena.” The recipients of these subpoenas understandably can become apprehensive. After all, they have involuntarily become involved in a lawsuit to which they may have little or no connection. As a result, it can become beneficial to have some understanding of the third-party subpoena process.

Must a Recipient of a Third-Party Subpoena Comply With the Request?
First and foremost, the recipient of a third-party subpoena should immediately seek legal counsel. It is understandable why you might be reluctant to seek advice from an attorney. Incurring legal fees resulting from someone else’s lawsuit can seem highly unfair and take you far outside your yearly expense budget. Nevertheless, the proper reaction to your subpoena can depend upon whether (i) the case is in state or federal court, (ii) the matter is civil or criminal in nature, (iii) the subpoena seeks your documents, testimony or both, and (iv) your relationship to the case and its parties. Sometimes these subpoenas are invalid or improperly prepared and can be dismissed upon a proper motion, but an experienced attorney must be consulted to determine if such a dismissal is possible. In any event, some response will be necessary, since ignoring the subpoena can constitute contempt of court and result in civil or criminal penalties.

Where Does the Subpoena Come From?
A subpoena can be issued by either a state or federal court. In short, most federal subpoenas are valid and warrant a response, particularly in criminal cases where both the government and the defendants are afforded national services of process. Indeed, any time you are served with a subpoena in a criminal case, experienced legal counsel should be consulted immediately to ensure that you are not subject to potential criminal exposure. Under these circumstances, it is usually prudent to obtain a “non-target” or “non-subject” letter from the authority that issued the subpoena prior to providing any information. This is an indication from the governmental authority requesting your subpoena that, at the time the subpoena was issued, you were not a subject or target of the criminal investigation.

In both civil and criminal cases, and in both state and federal court, there is a prescribed protocol that must be followed for the court to have jurisdiction to enforce the subpoena. If no jurisdiction exists, then there can be no court-enforced penalties for failing to comply with the subpoena. The requirements are different for state and federal court, so care must be taken to apply the proper standards and to act within the appropriate timeframe.

What Does the Subpoena Seek?
Third-party subpoenas can request documents, live testimony or both. If the subpoena requests only documents, then making those documents available for review and reproduction on the day and time listed on the subpoena will satisfy the requirements of the subpoena. However, great care must be taken when producing your documents to avoid the disclosure of privileged, confidential or proprietary information. Disclosure of such information can have disastrous consequences, so it is often wise to engage an attorney to review your documents prior to producing them.

If the subpoena seeks live testimony to be recorded by a stenographer, also known as a “deposition,” then a different analysis takes place. If it is a state-issued subpoena, the recipient should note whether it requests a “discovery” or an “evidence” deposition. A discovery deposition generally means that a party thinks you may have personal knowledge of some facts relevant to the litigation, and that party wants to learn those facts. Discovery depositions have limited use at trial and, depending upon whether the information is helpful or harmful to any party’s case, the recipient of the subpoena may ultimately be called again as a witness at trial. An evidence deposition, on the other hand, can be used at trial and read to the court as evidence. This can, under some circumstances, make it less likely you will be called as a witness at trial. It should be noted that in federal court, there is no such thing as a discovery deposition, so every subpoena for live testimony should be treated as an evidence deposition.

When a subpoena for both documents and live testimony is received, the analyses for both types of subpoenas must apply. Often times, however, the party issuing a third-party subpoena for both documents and testimony is primarily interested only in the documents. A simple telephone call to the attorney identified on the subpoena should allow you to learn whether testimony will be necessary if all of the requested documents are produced.

Why Have I Received the Subpoena?
Perhaps the most important question to be asked by the recipient of a third-party subpoena is why the subpoena was served. The concern is that the recipient may be drawn into the underlying lawsuit as a result of the information produced under the subpoena. Sometimes it is obvious that there is little likelihood of this happening because the recipient has no direct relationship to the parties or the case, but is merely in possession of documents or facts that are necessary for those parties to resolve their case. Sometimes, however, it is unclear whether the recipient can become summoned into the lawsuit. When the question is not clear-cut, legal counsel should be sought prior to responding to the subpoena.

What if I Refuse to Give the Information?
Because of the potential penalties that exist, a subpoena should never be ignored. If a determination has been made that information cannot or should not be produced, two alternatives are available. First, if a basis exists to refuse to produce the information sought by the subpoena, a motion to quash the subpoena can be filed. If successful, the subpoena is found to be invalid and no information needs to be produced.

In the event a motion to quash is unsuccessful, then a protective order can be requested. Courts tend to be sensitive to a third-party’s confidential information, and likely will enter a protective order to secure your information and limit its use if the request is reasonable. In some cases, these orders are mandatory. Such orders will typically prohibit the parties in the underlying lawsuit from disclosing the information publicly or to anyone who is not a party or attorney in the lawsuit. Penalties for violating a protective order can be even more severe than the penalties for ignoring the subpoena.

Receiving a third-party subpoena need not be a stressful exercise. Often the recipient can simply provide the documents requested and never again be bothered with the underlying lawsuit. Sometimes, however, the process can be more complicated and a basic understanding of the rules and procedures can be helpful. iBi