Corp subpoena darren chaker

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  • Great article. Thanks for the info, very helpful. BTW, if anyone needs to fill out a “2012 CA SUBP-010, [Jan 2012]”, I found a blank form here: "www.courts.ca.gov" and also here "California subpoena record"
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Corp subpoena darren chaker

  1. 1. Federal Practice:Responding to aSubpoenaDavid J. Lender, Jared R. Friedmannand Jason B. Bonk Weil, Gotshal &Manges LLP This Practice Note is published by Practical Law Company on its PLCCorporate & Securities web service at http://us.practicallaw.com/1-503-1741.This Practice Note discusses the FIRST STEPS IN RESPONDINGkey issues that the recipient of a TO A SUBPOENA As soon as a recipient is served with a subpoena, it shouldsubpoena should consider when immediately take preliminary steps to ensure proper and timelyresponding to a subpoena. compliance. These preliminary steps are set out below.Subpoenas are commonly used in civil litigation to obtain evidence ALERT ALL NEED-TO-KNOW EMPLOYEESfrom individuals, corporations and other entities who are not parties A corporate recipient must first alert all employees who need toto a lawsuit. This Note discusses the key issues that the subpoena’s know that the company has been served with a subpoena. Thisrecipient should consider when responding to a subpoena. may include the general counsel, other in-house lawyers, certain corporate officers and perhaps even outside lawyers.POTENTIAL RESPONSES TO A SUBPOENAThe recipient of a subpoena may respond in several ways. CALENDAR DEADLINESDepending on the circumstances of the case, the recipient may: Once the subpoena has been served, the recipient should„„Comply with the subpoena and provide the requested identify and calendar when it must respond to the subpoena. If testimony and/or documents (see Complying with the necessary, the recipient’s lawyer may need to quickly contact the Subpoena). issuing party to negotiate an extension. Any extensions should be in writing.„„Serve written objections to a document subpoena (see Written Objections).„„Move to quash (or modify) the subpoena (see Motion to Quash IDENTIFY AND PRESERVE ALL POTENTIALLY or Modify). RELEVANT EVIDENCE„„Move for a protective order (see Motion for Protective Order). Once the recipient has been served with a subpoena (or knows that it will be served), it has a duty to identify and preserve„„Contact the party who served the subpoena in an attempt to responsive documents and other information (see In re Napster, informally resolve the issue (see Informally Contacting the Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1068 (N.D. Cal. Issuing Party). 2006)). The recipient’s duty to preserve is triggered regardless of„„Contact an adverse party (that is, a party to the litigation who whether it believes that the subpoena is objectionable. Ultimately, did not serve the subpoena) in an attempt to have that party it is the court (not the recipient) that determines the subpoena’s exercise its rights against the party who issued the subpoena validity. If the recipient fails to take reasonable steps to preserve (see Informally Contacting the Adverse Party). relevant evidence, it may be held in contempt (Federal Rules of Civil Procedure (FRCP) Rule 45(e)). Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.
  2. 2. Federal Practice: Responding to a Subpoena Document Subpoenas DECIDE WHETHER TO COMPLY WITH OR A company that has been served with a subpoena seeking the RESIST THE SUBPOENA production or inspection of documents or other tangible items Several considerations impact the decision on whether to comply (document subpoena) should immediately take the following steps with (or resist) a subpoena, including: to ensure that all responsive documents are identified, collected „„The time, effort and cost of compliance or resistance. and preserved: „„Whetheror not sound legal and practical arguments to support „„Issue a written litigation hold notice requiring employees to non-compliance are available under the circumstances. collect and preserve all potentially responsive documents and „„Thelikelihood that arguments in support of non-compliance other information, including e-mails and backup tapes (see may be successful. Standard Document, Document Preservation Notice (http:// us.practicallaw.com/0-501-1545)). „„Identify all potential custodians of responsive documents, DECIDE WHETHER TO ENGAGE OUTSIDE COUNSEL including IT personnel and employees who may possess The recipient of a subpoena must quickly decide whether to enlist relevant information. outside counsel in formulating and initiating its response. For „„Monitor employee document preservation and collection efforts example, a company may want to engage outside counsel if the to ensure they comply with the notice and the company’s subpoena requests the production of sensitive and/or proprietary discovery obligations. information or if large volumes of documents are sought. However, if the subpoena calls for only a few documents and the stakes (See Pension Committee of the Univ. Of Montreal Pension Plan v. involved are relatively low, companies may wish to handle the Banc of America Securities, LLC, 685 F. Supp. 2d 456 (S.D.N.Y. response internally. In deciding whether to have in-house counsel 2010); Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431-34 respond to a subpoena, companies should consider whether (S.D.N.Y. 2004) and Practice Note, Implementing a Litigation the response would require the in-house lawyer to make an Hold (http://us.practicallaw.com/8-502-9481).) appearance (as is necessary to file a motion to quash). If it does, in-house counsel may need to become admitted to practice in the A company served with a document subpoena must produce issuing court if not already admitted there. all responsive documents within its control, even if those documents are in the physical possession of another, affiliated company (see Practice Note, Federal Practice: Using Subpoenas COMPLYING WITH THE SUBPOENA to Obtain Evidence: Indirect Non-party Discovery (http:// Complying with a subpoena may be the most appropriate course us.practicallaw.com/0-503-1893)). If a company reasonably in some cases. This section sets out several important issues that believes that responsive information is in the possession of one non-party witnesses face when complying with a subpoena. (or more) of its corporate affiliates, it should alert those affiliates about the subpoena to ensure they too take the proper steps to identify and preserve all relevant documents in their possession. DOCUMENT SUBPOENAS For further analysis of the issues that courts consider in determining whether a corporation controls documents held by Possession, Custody or Control an affiliate, see Article, Protecting Foreign Corporations from US If the recipient chooses to comply with a document subpoena, it Discovery (http://us.practicallaw.com/6-502-5304). must produce all materials in its possession, custody or control, whether or not the materials are located in the issuing court’s Testimony Subpoenas jurisdiction (see FRCP Rule 45(a)(1)(A)(iii) and 1991 Advisory If a subpoena commands one or more company representatives Committee Notes to FRCP Rule 45(a)(2)). Companies may to appear at a deposition, hearing or trial, the proper witness(es) therefore be required to produce documents possessed by their must be identified and notified. If the subpoena commands an corporate affiliates under certain circumstances (see Practice Note, appearance for purposes of providing testimony in an area that Federal Practice: Using Subpoenas to Obtain Evidence: Indirect is not sufficiently specified, both a meet and confer between Non-party Discovery (http://us.practicallaw.com/0-503-1893)). the parties and an interview of corporate employees may be If the recipient determines that it does not possess any responsive necessary to identify the appropriate witness(es). documents, it must still respond to the issuing party in writing If the proper witness is not available to testify on the dates setting forth that fact. The response must be served no later than specified in the subpoena, the company must indicate this fact the return date, although prudent counsel may wish to serve as a part of a written response to the subpoena. Alternatively, the response no later than the date on which written objections the recipient may contact the issuing party directly (or through are required to be served (see Written Objections: Timing). outside counsel) and negotiate a different mutually convenient This timeline may be modified informally through negotiation appearance date. between the parties, but the responding party must ensure that it formally conveys that it does not have responsive materials in its possession, custody or control.Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 2
  3. 3. Form of Production Method of ServiceFor hard copy documents, the recipient of a document subpoena The recipient needs only to deliver the documents to the locationgenerally does not need to produce the original documents. stated in the subpoena. It does not need to serve the documentsPhotocopies often suffice. For large-scale document productions, on every party to the underlying action. Although FRCP Rule 45parties typically scan the requested hard copy documents onto a does not identify the acceptable methods of service, a witnessDVD and send only the DVD (containing scanned images of the responding to a subpoena may arrange for service of responsivedocuments) to the requesting party. documents by any of the service methods set out in FRCP Rule 5 other than service through the court’s Case Management/Ordinary Course of Business Electronic Case Filing (ECF) system. Service through the ECFThe documents may be produced as they are kept in the ordinary system results in a court filing and these types of discoverycourse of business or they can be organized and labeled to documents are not filed with the court (FRCP Rule 5(d)(1) andcorrespond with the categories in the demand contained in the 2000 Advisory Committee Notes to FRCP Rule 5(d)).subpoena (FRCP Rule 45(d)(1)(A)). The recipient may choosethe manner in which to produce the documents and can even Timing of Serviceproduce them in some hybrid form. For example, the recipient The subpoena’s recipient should ensure that the requestedmay produce documents responsive to certain requests by documents arrive at the location stated in the subpoena on orcategory of document request and documents responsive to before the return date. The recipient should not wait until theother requests in the manner in which they are maintained in the return date to mail the documents to the requesting party, as thisordinary course of business. might technically violate the terms of the subpoena (which requires documents to be “produced” at a specified date, time and place).Inspection as Alternative to ProductionRecipients of a subpoena may comply with their obligations to Proof of Serviceproduce documents simply by making the documents or materials After delivering the documents to the required destination, the recipientavailable for inspection. Where a company chooses to comply should prepare an affidavit (or declaration) of service setting out:with a subpoena by producing copies of documents, the issuing „„The identity of the individual who delivered the documents.party may also seek to inspect, copy, test or sample the original „„A general description of the documents that were delivered.documents or materials, unless the recipient formally objects tothis (FRCP Rule 45(a)(1)(D)). „„The method, time, date and place of delivery. „„Any other relevant details.Electronically Stored Information (ESI) The recipient of the subpoena should retain this proof of serviceWhen producing electronically stored documents, including and present it to the court only if the issuing party claims that thee-mail, if a subpoena does not specify a form for producing recipient did not comply with the subpoena.ESI, the recipient must produce responsive materials in aform(s) in which it is ordinarily maintained or in a reasonably Confidentiality Agreementusable form(s) (FRCP Rule 45(d)(1)(B)). The recipient does In some instances, a subpoena may seek documents containingnot, however, need to produce the same ESI in more than one sensitive business information or other private information (suchform (FRCP Rule 45(d)(1)(C)). For example, if the recipient is as trade secrets, private health information and social securityinstructed to produce the documents in native format, there is numbers) that cannot be produced without some assuranceno additional obligation to also produce them in TIFF format of confidentiality. In these circumstances, the recipient mayand/or hard copy. Further, the subpoenaed party may object to wish to withhold the documents until the parties enter into aproducing ESI in a specified format. confidentiality agreement that is “so ordered” by the court. AThe recipient does not need to provide ESI from sources that confidentiality agreement may also provide that the attorney-are not reasonably accessible because of undue burden or cost, client privilege (or other applicable protection) is not waived whensuch as electronic data stored on backup tapes (FRCP Rule privileged or protected documents are inadvertently produced45(d)(1)(D)). The burden of making this showing (whether in a in litigation (see Standard Clause, Privilege Waiver Clause withresponse to a motion to compel or in a motion for a protective Claw-Back Provision (http://us.practicallaw.com/2-501-4958) andorder) is on the party claiming that the information is not Federal Rules of Evidence (FRE) Rule 502).reasonably accessible because of undue burden or cost (FRCP If a “so ordered” confidentiality agreement has already beenRule 45(d)(1)(D)). The court may still order discovery from entered by the court where the lawsuit is pending, it may includethese sources if the requesting party shows good cause (FRCP a provision that automatically controls the treatment of anyRule 45(d)(1)(D)). The court may also specify conditions for the documents produced by non-parties in response to a subpoenadiscovery (FRCP Rule 45(d)(1)(D)). issued by one of the litigants. Alternatively, if the terms of an existing confidentiality agreement (which does not contemplate 3 Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.
  4. 4. Federal Practice: Responding to a Subpoena third-party productions) are otherwise acceptable to the producing to quash a document subpoena. The recipient may not, however, party, it may be possible to simply enter a stipulation expanding serve written objections in response to a subpoena seeking the scope of the existing agreement to cover any documents testimony, but instead must make a formal motion to quash or produced in response to the subpoena. modify (see Aetna Cas. and Sur. Co. v. Rodco Autobody, 130 F.R.D. 2, 3 (D. Mass. 1990)). Where no confidentiality agreement exists (or none that is acceptable to the recipient), the recipient should seek to enter into an agreement with the issuing party after asserting timely METHOD OF SERVICE written objections to producing the sensitive information. If the The recipient may serve written objections on the requesting party negotiations reach an impasse, the recipient can move the issuing under any of the acceptable methods of service set out in FRCP court to enter a proposed protective order. However, similar to the Rule 5(b), except that it should not serve the objections over the motion to quash, the burden of persuasion for entry of a protective court’s ECF system. As noted above, ECF service results in a court order is borne by the moving party (see Jones v. Hirschfeld, 219 filing and these types of documents are not filed with the court F.R.D. 71, 74-75 (S.D.N.Y. 2003)). (FRCP Rule 5(d)(1) and 2000 Advisory Committee Notes to FRCP Rule 5(d)). The recipient does not need to serve every party in the SUBPOENAS SEEKING TESTIMONY underlying action with its objections. Instead, it may serve only the issuing party (FRCP Rule 45(c)(2)(B)). In addition, the recipient If the recipient decides to comply with a subpoena seeking should serve only a copy of its objections on the requesting party testimony, he must timely arrive at the place for deposition or trial and retain the original. on the return date. Where the testimony of a corporate officer, director or managing PROOF OF SERVICE agent is sought, the corporation must ensure that the appropriate The recipient should prepare a proof of service setting out the witness appears to testify. Courts treat the failure of a corporate identity of the server, the time, date, place and manner of service, officer, director or managing agent to attend a deposition as the and any other relevant information. The proof of service should be corporation’s failure (see Intl. Brotherhood of Elec. Workers, Local in the form of an affidavit or a declaration. The recipient should 474 v. Eagle Elec. Co., Inc., No. 06-2151-M1, 2007 WL 622504, retain the original proof of service in case the requesting party at *4 (W.D. Tenn. Feb. 22, 2007)). In contrast, a corporation claims that it did not receive the written objections. generally cannot be sanctioned when its low-level employees fail to appear for their depositions (see generally Intl. Brotherhood of Elec. Workers, Local 474, No. 06-2151-M1, 2007 WL 622504, at *4). TIMING For depositions of company witnesses under FRCP Rule 30(b) Timing is critical when serving written objections. The failure (6), the company must ensure that the witness is knowledgeable to timely comply with a subpoena without adequate excuse about the topics stated in the subpoena. In other words, there is constitutes contempt of court (FRCP Rule 45(e)). In addition, an affirmative duty to educate the 30(b)(6) witness(es) regarding all objections may be deemed waived if the recipient fails to the noticed topics. serve its objections on time (see United States ex rel. Schwartz v. TRW, Inc., 211 F.R.D. 388, 392 (C.D. Cal. 2002) and When preparing for the deposition or trial, the witness should not Application of Sumar, 123 F.R.D. 467, 472 (S.D.N.Y. 1988)). review any privileged documents because this could risk waiving However, courts sometimes excuse untimely objections in the privilege over those documents (FRE Rule 612). certain circumstances, such as where the recipient and the issuing party attempted to negotiate an extension of time in The company should arrange for a lawyer to represent a 30(b)(6) which to comply, or where the subpoena: witness (or other high-ranking corporate officer) at the deposition or trial. The company may also wish to hire a lawyer for lower-level „„Is overbroad on its face. employees if their testimony has the potential to affect the rights „„Imposes significant burden on a non-party witness. or interests of the company. In addition, the company should „„Setsa return date that does not allow for sufficient time to arrange for the requesting party to reimburse the witness for all comply with it. travel expenses authorized by law (see Practice Note, Federal Practice: Using Subpoenas to Obtain Evidence: Witness Fees (See Semtek Intern., Inc. v. Merkuriy Ltd., No. 3607, 1996 WL (http://us.practicallaw.com/0-503-1893)). 238538, at *2 (N.D.N.Y. May 1, 1996).) Written objections must be served on the party or attorney WRITTEN OBJECTIONS designated in the subpoena before the earlier of the return date or 14 days after the subpoena is served (FRCP Rule 45(c)(2) If the recipient takes exception to a document subpoena, the (B)). This is significant because it is different than serving written recipient may simply serve written objections on the issuing party objections to requests for documents served under FRCP Rule (FRCP 45(c)(2)(B)). The recipient does not need to formally move 34, which are generally due 30 days from service (FRCP RuleCopyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 4
  5. 5. 34(b)(2)). Because the issuing party sets the return date and therefore discussed in more detail in this Note’s section on motionsFRCP Rule 45 does not set a minimum time period within which to quash or modify subpoenas (see Motion to Quash or Modify).compliance with the subpoena may be commanded, the recipientmay be required to serve objections in less than 14 days. The EFFECT OF SERVING WRITTEN OBJECTIONSchart below provides examples of how the specified return datemay impact the date by which objections must be served: By serving written objections, the recipient suspends its obligation to comply with the subpoena unless the court later orders compliance or an agreement is reached between the recipient Return Date Objections Due and the issuing party (FRCP Rule 45(c)(2)(B)(ii)). If the recipient 10 days 10 days and the issuing party are unable to reach an agreement, the 14 days 14 days issuing party may attempt to force compliance by making a 30 days 14 days motion to compel (FRCP Rule 45(c)(2)(B)(i) and Practice Note, Federal Practice: Using Subpoenas to Obtain Evidence: Enforcing the Subpoena (http://us.practicallaw.com/0-503-1893)).The recipient needs only ensure that its objections are served(although not necessarily received) on or before the earlier of The recipient is still under a duty to preserve responsive14 days after service or the return date. When the recipient documents and other information both before and after it servessends its objections by mail, for example, those objections are its objections, as the duty to preserve does not evaporate untildeemed served as soon as they are placed in the mail box, even (and unless) the court quashes the subpoena or the parties agreeif the issuing party does not receive them until several days later otherwise (assuming there is no independent duty to preserve).(FRCP Rule 5(b)(2)(C)). If the court determines that compliance with a documentCourts disagree about whether objections to subpoenas seeking subpoena will impose an undue expense on the recipient, theprivileged documents must be made within the shorter 14-day court may shift the cost of compliance to the issuing party (FRCPtime period set out by FRCP Rule 45(c)(2)(B), or whether they Rule 45(c)(2)(B)(ii)). The costs may be fixed in advance ofmay be made at any time up to the return date. Most courts production or assessed after the documents have been producedrequire privilege objections to be made within the time period (1991 Advisory Committee Notes to FRCP Rule 45(c)(2) citingrequired by FRCP Rule 45(c)(2)(B) (see In re DG Acquisition United States v. CBS, Inc., 666 F.2d 364 (9th Cir. 1982)). InCorp., 151 F.3d 75, 81 (2nd Cir. 1998)). A smaller number of deciding whether to shift the cost of compliance courts consider:courts hold that the recipient has until the return date to object on „„The non-party’s interest in the outcome of the case.privilege grounds (see Winchester Capital Management Co., Inc. „„The non-party’s ability to bear the costs (as compared to thev. Manufacturers Hanover Trust Co., 144 F.R.D. 170, 175-76 (D. requesting party’s).Mass. 1992)). In any event, best practice is to assert a generalprivilege objection within the time period required by FRCP Rule „„Whether the litigation is of public importance.45(c)(2)(B) to ensure that the objection is not waived. (See Miller v. Allstate Fire & Cas. Ins. Co., No. 07-cv-0260, 2009 WL 700142, at *5 (W.D. Pa. Mar. 17, 2009).)GROUNDS FOR OBJECTINGThere are many grounds for objecting to a document subpoena, BENEFITS OF SERVING WRITTEN OBJECTIONSincluding that the subpoena: Although serving written objections may not necessarily prevent„„Does not allow sufficient time to comply. the disclosure of the requested documents (for example, where„„Seeks irrelevant evidence. the requesting party succeeds on its motion to compel), they may still provide the recipient with a tactical advantage. By serving„„Requires disclosure of privileged or other protected written objections, the recipient can effectively shift the burden of information. proof to the party that issued the subpoena by requiring it to file„„Subjects the recipient to undue burden or expense. a motion to compel, unless the objection is based on the claimed„„Requires disclosure of a trade secret or other confidential inaccessibility of ESI, in which case the recipient continues to business information. bear the burden of proof (FRCP Rule 45(d)(1)(D)). In contrast,„„Requires disclosure of an unretained expert’s opinion or the burden of proof would be on the recipient if it were to make information. a motion to quash the subpoena. In addition, if the subpoena„„Contains requests that are so vague and ambiguous that it is is issued out of a court that is different from the court where unreasonable or even impossible for the recipient to comply. the underlying action is pending, the requesting party will have to spend the time and resources commencing a new action„„Was improperly served. in the issuing court to compel compliance with the subpoena.„„Was issued out of the wrong court. This effort is borne by the recipient if it were to move to quash the subpoena. In addition, best practice is to assert generalThese objections are essentially the same as those that could be objections within the time period required by FRCP Rule 45(c)made in a motion challenging the subpoena’s validity and are 5 Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.
  6. 6. Federal Practice: Responding to a Subpoena (2)(B) to ensure that the objections are not waived. Asserting 2006); but see Hartz Mountain Corp. v. Chanelle Pharm. general objections also affords the recipient additional time in the Veterinary Products Mfg. Ltd., 235 F.R.D. 535, 536 (D. Me. 2006) event that the recipient is ultimately obligated to comply with the (questioning whether a motion to quash a subpoena must be demands set forth in the subpoena. made within the 14-day period to serve written objections under FRCP Rule 45(c)(2)(B)). MOTION TO QUASH OR MODIFY Courts may excuse delay for the same circumstances that justify delay in serving written objections, including where the parties If the recipient does not wish to comply with a subpoena engaged in communications that may have otherwise avoided commanding attendance at a deposition, hearing or trial, it may the need for a motion to quash or modify (see Hartz Mountain move to quash or modify the subpoena (FRCP Rule 45(c)(3)). Corp., 235 F.R.D. at 536; Concord Boat Corp. v. Brunswick Corp., The recipient of a document subpoena may also make a motion 169 F.R.D. 44, 48-51 (S.D.N.Y. 1996) and Written Objections: to quash instead of serving written objections. Before making any Timing). Delay may also be excused where the time between motion, including a motion to quash, the moving party should the subpoena’s service and return date is very short, which then review the local rules and standing orders of the issuing court and prevents the moving party from reasonably being able to file its those of the judge (if known) to ensure that all of the required motion before the return date (see U.S. ex rel. Pogue v. Diabetes procedures are observed. Treatment Centers of America, Inc., 238 F. Supp.2d 270, 278 & n. 6 (D.D.C. 2002)). BURDEN OF PROOF The burden of proof on a motion to quash is borne by the REQUIRED DOCUMENTS recipient of the subpoena (that is, the movant on the motion to The documents required to make a motion to quash are generally quash) (see Sea Tow Intl., Inc. v. Pontin, 246 F.R.D. 421, 424 the same as those for a motion to compel. For example, the (E.D.N.Y. 2007) and Jones, 219 F.R.D. at 74-75). recipient generally must file: „„A notice of motion. IMMEDIATE EFFECT OF MOTION TO QUASH OR MODIFY „„Memorandum of law. Once the recipient has moved to quash or modify a subpoena, „„Supporting affidavits (or declarations). it may refuse to comply with the subpoena until the motion is decided (see Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d „„A proposed order. 492, 494 (9th Cir. 1983) and Broussard v. Lemons, 186 F.R.D. „„Proof of service. 396, 398 (W.D. La. 1999)). However, as with the service of written In addition, because a motion to quash or modify is likely to be objections, the recipient must continue to preserve all responsive the first filing the recipient makes in the case, it may also need evidence until (and unless) its motion to quash is granted or the to file a FRCP Rule 7.1 corporate disclosure statement (if the parties reach an agreement (assuming there is no independent recipient is a corporation or other organization) and a notice of duty to preserve). appearance. WHERE TO MAKE MOTION If the motion to quash is made in a court that is different from the court where the underlying action is pending, the recipient A motion to quash or modify a subpoena is filed in the court that may need to commence a miscellaneous action in the issuing issued the subpoena (FRCP Rule 45(c)(3)(A) and 1991 Advisory court, file additional documents (such a civil cover sheet) and Committee Notes to FRCP Rule 45(a)). This may be, but is not pay the required filing fees. These are the same issues that necessarily, the court where the underlying action is pending. the issuing party faces when making a motion to enforce the Where the issuing court and the court where the underlying action subpoena in a court other than the court where the underlying is pending are not the same, some courts have held that a motion action is pending (see Practice Note, Federal Practice: Using to quash made in the issuing court may be transferred to the Subpoenas to Obtain Evidence: Where to Make the Motion court where the underlying action is pending (see United States v. (http://us.practicallaw.com/0-503-1893)). Star Scientific, Inc., 205 F. Supp. 2d 482, 484-88 (D. Md. 2002)). Other courts, however, have held that the issuing court may not transfer a motion to quash to another court (see In re Sealed MEET AND CONFER REQUIREMENT Case, 141 F.3d 337, 340-43 (D.C. Cir. 1998 )). Some courts require the non-party recipient to meet and confer with the party that issued the subpoena before making a motion TIME TO MAKE MOTION to quash (see Practice Note, Federal Practice: Using Subpoenas to Obtain Evidence: Enforcing the Subpoena: Meet and Confer Generally, a motion to quash or modify a subpoena must be Requirement (http://us.practicallaw.com/0-503-1893)). Other made before the subpoena’s return date (see Estate of Ungar courts hold that there is no obligation to meet and confer before v. Palestinian Authority, 451 F. Supp. 2d 607, 610 (S.D.N.Y. making a FRCP Rule 45 motion (see Practice Note, FederalCopyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 6
  7. 7. Practice: Using Subpoenas to Obtain Evidence: Enforcing the in that jurisdiction, instead of handling all aspects of theSubpoena: Meet and Confer Requirement (http://us.practicallaw. response internally.com/0-503-1893)). If the issuing court does require the recipientto meet and confer with the issuing party, the recipient’s lawyer MANDATORY GROUNDS FOR QUASHING OR MODIFYINGshould file, as an attachment to the motion, an affidavit (ordeclaration) describing his good faith efforts to resolve the dispute On a timely motion, the issuing court must quash or modify awithout court intervention. In addition, the issuing court’s local subpoena that:rules or the judge’s individual practice rules may require the „„Failsto allow a reasonable time to comply (see Failure to Allowrecipient and the issuing party to contact the presiding judge in Reasonable Time to Comply).advance of making a motion to quash. Failure to follow these rules „„Requires a person who is neither a party nor a party’s officer tocould result in the motion being denied on procedural grounds. travel more than 100 miles from where that person resides, isSignificantly, these prerequisite steps also may lead to a cost- employed or regularly transacts business in person (althougheffective resolution of the dispute. the person may be commanded to attend a trial by traveling from any place within the state where the trial is held if theMETHOD OF SERVICE person will not incur substantial expense to travel more than 100 miles to attend trial) (see Travel in Excess of 100 Miles).A motion to quash or modify a subpoena must be served on allof the parties to the underlying action (FRCP Rule 5(a)(1)(D)). „„Requires disclosure of privileged or other protected matter, ifWhere the motion is made in the court where the underlying no exception or waiver applies (see Disclosure of Privilegedaction is pending, the recipient’s lawyer should apply for an ECF Information).login and password (if he does not already have one) and serve/ „„Subjects the recipient to undue burden (see Undue Burden).file the motion and supporting papers in the underlying lawsuit (FRCP Rule 45(c)(3)(A).)through the court’s ECF system.Where the issuing court is different from the court where Failure to Allow Reasonable Time to Complythe underling action is pending, the recipient generally must FRCP Rule 45 does not prescribe a minimum or maximumcommence a miscellaneous action in the issuing court. The amount of time for compliance with a subpoena (see Practicerecipient should still serve its motion papers on the requesting Note, Federal Practice: Using Subpoenas to Obtain Evidence:party and the other parties to the underlying lawsuit, but Timing of Service (http://us.practicallaw.com/0-503-1893)).the method of service may differ depending on whether the Therefore, a motion to quash based on insufficient noticeissuing court allows parties to electronically file papers in depends on the facts of the specific case along with the naturemiscellaneous actions (see Practice Note, Federal Practice: and scope of the documents requested (see Parrot, Inc. v.Using Subpoenas to Obtain Evidence: Where to Make the Nicestuff Distributing Intl., Inc., No. 06-cv-61231, 2009 WLMotion (http://us.practicallaw.com/0-503-1893)). The District 197979, at *4 (S.D. Fla., Jan. 26, 2009)). However, the issuingCourt for the Southern District of New York, for example, does court’s local rules may provide a minimum time period fornot allow for electronic filing in miscellaneous cases (see, for compliance (see, for example, U.S.D.C. E.D. Va. L. Civ. R. 45(E)example, Rule 18.8 of the S.D.N.Y. Electronic Case Filing Rules (requiring trial subpoena to be served no later than 14 days before& Instructions (Aug. 1, 2008 ed.)). Even if the court allows for the return date)).electronic filing in miscellaneous cases, as a practical matter,the party who initiates the miscellaneous action will probably Travel in Excess of 100 Mileshave to serve hard copies of its opening motion papers (along FRCP Rule 45’s prohibition against requiring non-party witnesseswith any additional initiating documents) on the other parties to travel more than 100 miles represents a substantial limitingafter commencing the miscellaneous action. This is because factor on a court’s subpoena power. Even if the court hasthe other parties will not have notice of the miscellaneous action jurisdiction over the witness under FRCP Rule 45(b)(2) and theuntil after they receive the movant’s motion papers and therefore issuing court is the proper “issuing court” under FRCP Rule 45(a)will probably not have noticed an appearance on the court’s (2), the subpoena must still be quashed if it requires a witnesselectronic docket before they receive the movant’s papers (filing who is not a party or a party’s officer to travel more than 100a notice an appearance in a case allows the parties to receive miles from where he lives, works or regularly transacts businessservice of papers electronically). in person (FRCP 45(c)(3)(A)(ii) and Halliburton Energy Services, Inc. v. M-I, LLC, No. 06-mc-0053, 2006 WL 2663948, at *2 (S.D.ATTORNEY ISSUES Tex. Sept. 15, 2006)). But this prohibition is not absolute. A non-The recipient’s lawyer typically has to be admitted to practice party witness may be commanded to travel more than 100 milesin the jurisdiction of the issuing court before making a motion to appear for trial (but not a deposition) if the travel remains within(or any other appearance) there. This may encourage corporate the state where the issuing court is located and would not requirerecipients to retain outside counsel who is admitted to practice the witness to incur substantial travel expense (FRCP Rule 45(c) (3)(A)(ii) and FRCP Rule 45(c)(3)(B)(iii)). 7 Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.
  8. 8. Federal Practice: Responding to a Subpoena Under FRCP Rule 45(e), a non-party’s failure to obey a subpoena Undue Burden must be excused, regardless of whether a motion to quash has Undue burden is a broad, catch-all provision that allows the court been filed, if the subpoena purports to require the non-party to quash or modify a subpoena that imposes an undue burden to attend or produce at a place outside the 100-mile limit (see on the recipient because of the time, effort or expense required to Echostar Satellite LLC v. Viewtech, Inc., No. 09-mc-00052, 2010 comply. Challenges based on undue burden or expense typically WL 653186, at *1 (E.D. Cal. Feb. 22, 2010)). Still, if the recipient arise where a subpoena seeks the production of documents, not believes that he is outside the reach of the subpoena, the where it seeks testimony. safest course of action is to move to quash the subpoena rather than ignore it and risk contempt if the court disagrees with the Determining whether the claimed burden is “undue” requires the recipient’s determination. court to weigh the issuing party’s needs against the recipient’s burden (see Positive Black Talk Inc. v. Cash Money Records, Inc., The 100-mile travel rule does not apply to document subpoenas 394 F.3d 357, 377 (5th Cir. 2004), abrogated on other grounds (at least where the subpoena is not combined with a testimonial by Reed Elsevier, Inc. v. Muchnick, 130 S. Ct. 1237 (2010)). In subpoena) (see Price Waterhouse LLP v. First American Corp., balancing these competing interests, courts usually look at the: 182 F.R.D. 56, 63 & n. 5 (S.D.N.Y. 1998)). This is because the recipient can simply mail the documents to the place of „„Relevance of the sought-after evidence. production; there is no need for the recipient to travel. „„Issuing party’s need for the evidence. „„Breadth of the request. For purposes of FRCP Rule 45(c)(3)(A)(ii), courts measure the 100 miles as a straight line between the place from which the „„Time period covered by the request. witness travels and the place of attendance, not by the surface „„Adequacy of description of the evidence sought. route taken/total mileage traveled (see Palazzo ex rel. Delmage v. „„Burden imposed. Corio, 204 F.R.D. 639 (E.D.N.Y. 1998)). (See Concord Boat Corp., 169 F.R.D. at 49.) To the extent the issuing party relies on the witness’s business transactions to support the subpoena’s validity, the issuing party However, these factors are not exclusive. For example, courts must present evidence of substantial in-person trips to the may also consider whether compliance with the subpoena jurisdiction of the issuing court (see Halliburton Energy Services, implicates privacy interests and whether the sought-after Inc., No. 06-mc-0053, 2006 WL 2663948, at *2). Sporadic visits evidence is more readily available from another source (see or business transactions done over the phone do not qualify (see Northwestern Memorial Hosp. v. Ashcroft, 362 F.3d 923, 928- M’Baye v. New Jersey Sports Production, Inc., 246 F.R.D. 205, 32 (7th Cir. 2004) and Graham v. Casey’s General Stores, 206 207-08 (S.D.N.Y. 2007)). F.R.D. 251, 254 (S.D. Ind. 2002)). The plain language of FRCP Rule 45(c)(3)(A)(ii) seems to If the court determines that compliance with a subpoena will be simply an added safeguard designed to protect non-party impose an undue expense on the recipient, it may shift the cost witnesses from having to travel more than 100 miles to testify, even of compliance to the issuing party (FRCP Rule 45(c)(2)(B)(ii) and where the issuing court may have jurisdiction over the witness. FRCP Rule 45(c)(3)(C)). The costs may be fixed in advance of However, some courts have held that FRCP Rule 45(c)(3)(A) compliance or assessed after the subpoena has been complied (ii) actually expands the court’s subpoena power by allowing it to with (1991 Advisory Committee Notes to FRCP Rule 45(c)(2) subpoena a party or a party’s officer to attend a trial beyond the citing United States v. CBS, Inc., 666 F.2d 364 (9th Cir. 1982)). 100-mile jurisdictional limit set out in FRCP Rule 45(b)(2) (see In deciding whether to shift the cost of compliance to the party In re Vioxx Prods. Liab. Litig., 438 F. Supp. 2d 664, 667 (E.D. La. seeking discovery, courts consider: 2006)). However, not all courts have taken this expansive view (see „„The non-party’s interest in the outcome of the case. Johnson v. Big Lots Stores, Inc., 251 F.R.D. 213, 215-16 (E.D. La. „„The non-party’s ability to bear the costs (as compared to the 2008) and Mazloum v. District of Columbia Metropolitan Police requesting party’s). Dept., 248 F.R.D. 725, 728 (D.D.C. 2008)). „„Whether the litigation is of public importance. Disclosure of Privileged Information (See Miller, No. 07-cv-0260, 2009 WL 700142, at *5.) The court must quash a subpoena that seeks privileged or other In addition, the issuing party could face sanctions (including protected information, such as attorney work product. Whether paying the recipient’s lost earnings and reasonable attorneys’ or not information may be withheld on privilege grounds is fees) if the court determines that compliance with the subpoena determined by either federal or state substantive law, depending would impose an undue burden or expense on the witness who on whether the underlying cause of action arises from alleged is subject to the subpoena (see Practice Note, Federal Practice: violations of federal or state law (FRE Rule 501). As discussed Using Subpoenas to Obtain Evidence: Duty to Avoid Undue below, the recipient must serve a privilege log when it withholds Burden or Expense (http://us.practicallaw.com/0-503-1893)). information on grounds of privilege or some other recognized protection (see Claiming Privilege or Protection).Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 8
  9. 9. PERMISSIVE GROUNDS FOR QUASHING OR MODIFYING A court may order an unretained expert to comply with a subpoena if the issuing party demonstrates substantial need forIn addition to the grounds listed above in which the issuing court the testimony and ensures that the subpoenaed person will be“must” quash or modify a subpoena, FRCP Rule 45 also sets out reasonably compensated (1991 Advisory Committee Notes togrounds under which the issuing court “may” quash or modify a FRCP Rule 45(c)(3)(B)(ii) and Alternative Relief Issued by Court).subpoena. The issuing court may quash or modify a subpoena In determining the issuing party’s need for an expert’s testimony,that requires: courts may consider various factors, including the:„„The recipient to disclose a trade secret or other confidential „„Degree to which the expert is being called because of his research, development or commercial information (see knowledge of facts relevant to the case rather than to give Disclosure of Confidential Information). opinion testimony.„„The recipient to disclose an unretained expert’s opinion or „„Difference between testifying to a previously formed or information that does not describe specific occurrences expressed opinion and forming a new one. in dispute and results from the expert’s study that was not „„Possibility that the witness is a unique expert. requested by a party (see Unretained Expert’s Opinion). „„Extent to which the calling party can show the unlikelihood that„„A person who is neither a party nor a party’s officer to incur substantial expense to travel more than 100 miles to attend any comparable witness will willingly testify. trial (see Substantial Expense While Traveling). „„Degree to which the witness can show that he has been oppressed by having to testify continually.(FRCP Rule 45(c)(3)(B).) (1991 Advisory Committee Notes to FRCP Rule 45(c)(3)(B)(ii)Disclosure of Confidential Information citing Kaufman v. Edelstein, 539 F.2d 811, 822 (2nd Cir. 1976).)Courts generally may quash or modify a subpoena that seeks tradesecret or other confidential commercial information only where the Substantial Expense While Travelingrecipient shows that the disclosure of this information would cause If the recipient is neither a party nor a party’s officer, the courtsubstantial economic harm to its competitive position (see Stewart may quash or modify a subpoena that requires the recipientv. Mitchell Transport, No. 01-cv-02546, 2002 WL 1558210, at *8 to incur substantial expense to travel more than 100 miles to(D. Kan. Jul. 8 2002)). Objections to a subpoena that requires the attend a trial (FRCP Rule 45(c)(3)(B)(iii)). The issuing party maydisclosure of trade secret or other confidential information can often generally avoid having a subpoena quashed on these grounds bybe resolved through a confidentiality agreement that has either agreeing to pay for the recipient’s travel expenses.previously been entered in the litigation or that is subsequentlynegotiated between the recipient and the issuing party (see RELIEF ISSUED BY COURTComplying with the Subpoena: Confidentiality Agreement). Theconfidentiality agreement may, for example, set forth that documents If the recipient of a subpoena prevails on a motion to quash or modify,produced may only be used for the purpose of the litigation, place an the court can either quash the subpoena in its entirety or modify the“attorneys’ eyes only” limit on who can view the documents, require objectionable portions (see Ghandi v. Police Dept. of City of Detroit,the documents to be filed under seal (if used in connection with a 74 F.R.D. 115, 117 (E.D. Mich. 1977)). The decision whether tocourt proceeding) and require the prompt return or destruction of quash or modify a subpoena is left to the discretion of the trial courtthe documents at the conclusion of the lawsuit. Depending on the (see Arista Records LLC v. Does 1-27, 584 F. Supp. 2d 240, 253 (D.practice of the issuing court, it may be preferable (or even required) Me. 2008)). If the court quashes the subpoena, the issuing partyto have the court “so order” the confidentiality agreement. may serve another subpoena on the recipient that cures the original subpoena’s defects if there is no court order to the contrary (and forUnretained Expert’s Opinion discovery subpoenas, if the discovery period is still open).Rule 45 prohibits a party from attempting to extract expert A question sometimes arises about what effect the denial of atestimony from a non-party witness who has not been retained by motion to quash has on the recipient’s obligations, specificallya party in the litigation. The concern here is that a party may seek where the court order denying the motion to quash does not directto force an expert to provide testimony without compensating compliance within a specified time period. Although the denial ofthe expert for his opinion (1991 Advisory Committee Note to a motion to quash can also be interpreted as an order compellingFRCP Rule 45(c)(3)(B)(ii)). By contrast, an expert witness who compliance, at least one court has suggested otherwise (seehas already been retained by a party to testify at trial may be Pennwalt Corp, 708 F.2d at 494). Therefore, to avoid anydeposed by any other party to the litigation (FRCP Rule 26(b)(4)). confusion, the issuing party should cross-move to compelIn addition, an unretained expert may be subpoenaed as a fact compliance in response to a motion to quash a subpoena.witness for the purpose of eliciting testimony regarding specificevents or facts in dispute (see Gaujacq v. Electricite De France ALTERNATIVE RELIEF ISSUED BY COURTIntl. North America, Inc., 06-mc-0042, 2006 WL 1489256, at *2 In situations where the issuing court may quash or modify a(N.D. Tex. May 26, 2006)). subpoena, the court has the discretion instead to order an 9 Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.
  10. 10. Federal Practice: Responding to a Subpoena appearance or production under specified conditions if the „„Specifying terms, including time and place, for the disclosure requesting party both: or discovery. „„Shows a substantial need for the testimony or material that „„Prescribing a discovery method other than the one selected by cannot be otherwise met without undue hardship. the party seeking discovery. „„Ensures that the subpoenaed person will be reasonably „„Forbidding inquiry into certain matters or limiting the scope of compensated. disclosure or discovery to certain matters. „„Designating the persons who may be present while the (FRCP Rule 45(c)(3)(C).) discovery is conducted. For example, the court may condition a document production „„Requiring that a deposition be sealed and opened only on on entry of a protective order or require the issuing party to court order. compensate a subpoenaed witness before ordering the witness to „„Requiring that a trade secret or other confidential research, appear for a deposition. development or commercial information not be revealed or be revealed only in a specified way. OTHER GROUNDS FOR QUASHING „„Requiring that the parties simultaneously file specified The grounds for quashing or modifying a subpoena are not limited documents or information in sealed envelopes, to be opened as to those set out in FRCP Rule 45(c). The recipient may have the court directs. many other valid grounds for objecting to a subpoena, including: (FRCP Rule 26(c)(1)(A)-(H).) „„The subpoena was issued out of the incorrect court (see Practice Note, Federal Practice: Using Subpoenas to Obtain Although the relief ordered under FRCP Rule 26(c) may, to a Evidence: Which Court May Issue the Subpoena (http:// certain degree, be duplicative of what could be obtained in a us.practicallaw.com/0-503-1893)). motion to quash or modify under FRCP Rule 45(c), there are „„The issuing court does not have personal jurisdiction over situations when the subpoena’s recipient should move under the recipient (see Practice Note, Federal Practice: Using FRCP Rule 26(c). For example, if the recipient objects to the Subpoenas to Obtain Evidence: Place of Service (http:// videotaping of his deposition, he cannot quash the deposition us.practicallaw.com/0-503-1893)). on that ground alone. But he may be able to obtain a protective order under FRCP Rule 26(c) limiting the use of that recording or „„The subpoena was improperly served (see Practice Note, seeking a change in recording format (2005 Advisory Committee Federal Practice: Using Subpoenas to Obtain Evidence: Notes to FRCP Rule 45). Method of Service (http://us.practicallaw.com/0-503-1893)). „„No witness fees were tendered at the time of service (see Practice Note, Federal Practice: Using Subpoenas to Obtain BURDEN OF PROOF Evidence: Attendance and Mileage Fees (http://us.practicallaw. As with a motion to quash, the recipient of the subpoena com/0-503-1893)). bears the burden of proof in seeking a protective order under „„Lack of subject matter jurisdiction over the lawsuit (see United FRCP Rule 26(c) (see Parrot, Inc., No. 06-cv-61231, 2009 WL States Catholic Conference v. Abortion Rights Mobilization, 197979, at *3). Inc., 487 U.S. 72, 76 (1988)). „„Technical defects on the face of the subpoena, such as the failure IMMEDIATE EFFECT OF MOTION FOR A PROTECTIVE ORDER to include the text of FRCP Rules 45(c) and (d) (see Anderson v. Courts have held that the mere filing of a motion for a protective Virgin Islands, 180 F.R.D. 284, 289-90 (D.V.I. 1998)). order under Rule 26(c) does not automatically stay the recipient’s discovery obligations pending resolution of the motion (see MOTION FOR A PROTECTIVE ORDER Versage v. Marriott Intl., Inc., No. 05-cv-0974, 2006 WL 3614921, at *7 (M.D. Fla. Dec. 11, 2006)). However, some courts have In response to a discovery subpoena, the recipient may make a enacted local rules providing for an automatic stay of discovery motion for a protective order under FRCP Rule 26(c) instead of upon the filing of a motion for a protective order (see Petersen v. (or in combination with) a motion to quash or modify under FRCP DaimlerChrysler Corp., No. 06-cv-0108, 2007 WL 2391151, at *5 Rule 45(c). (D. Utah Aug. 17, 2007) (citing D.U. Civ. R. 26-2) and Horsewood v. Kids “R” Us, No. 97-cv-2441, 1998 WL 892667, at *1 (D. Kan. RELIEF SOUGHT Dec. 10, 1998) (citing D. Kan. Rule 26.2)). The court may for good cause issue an order to protect a party or person from annoyance, embarrassment, oppression or undue WHERE TO MAKE MOTION burden or expense by doing one or more of the following: The recipient must move for a protective order in the court where „„Forbidding the disclosure or discovery. the action is pending, or as an alternative on matters relating to a deposition, in the court for the district where the deposition will beCopyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 10
  11. 11. taken (FRCP Rule 26(c)(1) and Lefkoe v. Jos. A. Bank Clothiers, contempt if it fails to provide the required detail in a privilege logInc., 577 F.3d 240, 246 (4th Cir. 2009)). (1991 Advisory Committee Notes to FRCP Rule 45(d)(2)). If the recipient has already produced privileged or work product-TIME TO MAKE MOTION protected material in response to the subpoena, he may notifyA motion for a protective order is timely if it is made before the parties of this fact, after which notification, the receivingthe subpoena’s return date (see In re Coordinated Pretrial party must:Proceedings in Petroleum Products Antitrust Litigation 669 F.2d „„Promptly return, sequester or destroy the documents and any620, 622 n. 2 (10th Cir. 1982)). copies it has. „„Not use or disclose the information until the claim is resolved.REQUIRED DOCUMENTS „„Take reasonable steps to retrieve the information if the partyThe documents that are required to be served and filed in disclosed it before being notified.connection with a motion for a protective order are generally (FRCP Rule 45(d)(2)(B).)the same as those required for a motion to quash or modify asubpoena (see Motion to Quash or Modify: Required Documents The person who produced the information must preserve theand Meet and Confer Requirement). information until the claim is resolved (FRCP Rule 45(d)(2)(B)). If there is a dispute about the privileged nature of the information,MEET AND CONFER REQUIREMENT the court will resolve that dispute under either federal or stateA motion for a protective order under Rule 26(c) must include substantive law, depending on whether the underlying cause ofa certification that the moving party has in good faith conferred action arises from alleged violations of federal or state law (FREor attempted to confer with other affected parties in an effort to Rule 501). Disputes about whether the privilege has been waivedresolve the dispute without court action (FRCP Rule 26(c)(1)). are determined under FRE Rule 502. The parties may promptly present the purportedly privileged information to the court under seal for a determination of the claim (FRCP Rule 45(d)(2)(B)).METHOD OF SERVICEA motion for a protective order is served in the same way as amotion to quash or modify a subpoena (see Motion to Quash or INFORMALLY CONTACTING THEModify: Method of Service). ISSUING PARTY An efficient and cost-effective way of clarifying and/orATTORNEY ISSUES narrowing the scope of a subpoena and possibly defrayingAs with a motion to quash or modify, the moving party’s attorney some of the costs associated with document production is forshould ensure that he is admitted to practice in the court where the recipient (or the recipient’s attorney) to contact the attorneythe motion is made, and obtain an ECF password if necessary that issued the subpoena. This direct dialogue may lead to(see Motion to Quash or Modify: Attorney Issues). additional time to respond to the subpoena, as well as a better understanding of what is being sought and perhaps even an agreement about the scope of the documents that will beCLAIMING PRIVILEGE OR PROTECTION produced in response to the subpoena. In certain jurisdictionsTo the extent that a recipient asserts an objection and withholds this type of discussion between the receiving and issuingotherwise responsive materials on the basis that the materials parties is mandatory before filing any motion to quash or modifysought are privileged (or subject to another recognized (see U.S.D.C. C.D. Cal. L.R. 45-1).protection), the recipient must produce a privilege log that:„„Sets out the specific assertion of privilege or protection INFORMALLY CONTACTING THE claimed.„„Describes the nature of the withheld materials in a manner that ADVERSE PARTY enables the parties to assess the assertion without revealing Before responding to a subpoena, the recipient may want to first the privileged or protected information. contact a party to the underlying lawsuit that is adverse to the issuing party. An adverse party may independently move to quash(FRCP Rule 45(d)(2)(A).) or modify the subpoena where it has a personal right or privilegeIdeally, the recipient will serve its privilege log along with its that is affected by information responsive to the subpoena (seewritten objections, although courts may allow the recipient to Brown v. Braddick, 595 F.2d 961, 967 (5th Cir. 1979); Jacobsserve the log within a reasonable time after serving its objections v. Conn. Community Tech. Colleges, 258 F.R.D. 192, 194-95(see Tuite v. Henry, 98 F.3d 1411, 1416-17 (D.C. Cir. 1996)). (D. Conn. 2009) and Sterling Merch., Inc. v. Nestle, S.A., 470 F.The recipient risks waiving its privilege claims and being held in Supp. 2d 77, 81 (D.P.R. 2006)). If the recipient’s interests and the adverse party’s interests are identical, the recipient may, for 11 Copyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved.
  12. 12. Federal Practice: Responding to a Subpoena example, save time and money by simply signing on to a motion ancillary proceeding and the underlying lawsuit are in separate to quash drafted by the adverse party. district courts within the same circuit. Several circuits hold that an appeal in this situation must wait until entry of a final judgment in the underlying action (see Periodical Publishers Service CONSEQUENCES FOR FAILING TO COMPLY Bureau, Inc. v. Keys, 981 F.2d 215, 217-18 (5th Cir. 1993); WITH THE SUBPOENA Hooker v. Continental Life. Ins. Co., 965 F.2d 903, 905 (10th Cir. 1992); Barrick Group, Inc. v. Mosse, 849 F.2d 70, 73 (2nd A party who fails to comply with an otherwise valid subpoena Cir. 1988) and In re Subpoena Served on the California Public without adequate excuse can be held in contempt and subjected Utilities Commission, 813 F.2d at 1476-77). Other circuits take to fines or even imprisonment (FRCP Rule 45(e)). FRCP Rule a more liberal approach and allow the aggrieved party to take an 45(e) does not state what constitutes an “adequate excuse.” That immediate appeal (see Heat & Control, Inc. v. Hester Indus., Inc., question is necessarily determined by the facts of a particular 785 F.2d 1017, 1021-22 (Fed. Cir. 1986) and Ariel v. Jones, 693 case. A recipient’s absolute inability to comply with a subpoena F.2d 1058, 1059 (11th Cir. 1982)). If the aggrieved party is forced constitutes adequate excuse for disobedience as long as the to take two separate appeals after entry of a final judgment in the recipient has not taken deliberate steps to make compliance underlying action (that is, an appeal from the ancillary proceeding impossible (see Kowalczyk v. United States, 936 F. Supp. 1127, and an appeal from the underlying action), he must file two 1149-50 (E.D.N.Y. 1996)). The issuing court must also excuse the separate notices of appeal in the district court (and pay the recipient’s non-compliance if the subpoena requires the non-party required filing fees for both) and then move in the appellate court to travel, for purposes of a deposition, more than 100 miles from to consolidate the two appeals under Rule 3(b) of the Federal where he lives, works or regularly transacts business in person Rules of Appellate Procedure (see Hooker, 965 F.2d at 905). (FRCP Rule 45(e) and Travel in Excess of 100 Miles). However, given the fact-intensive inquiry and discretion by the court to determine what amounts to “adequate excuse,” the prudent ORDER GRANTING DISCOVERY course is to comply with the subpoena, serve written objections or Non-parties may not take an immediate appeal from an order move to quash rather than disregard the subpoena and hope that granting discovery regardless of whether the order is made in the court will find an adequate excuse for noncompliance. the underlying action or in an ancillary proceeding. Immediate appellate review is only available where the non-party defies the APPEALS court order, is found in contempt and seeks an appeal of the contempt citation (see In re Flat Glass Antitrust Litig., 288 F.3d As a general matter, federal appeals courts may hear appeals only 83, 89-90 (3rd Cir. 2002) (underlying action); MDK, Inc. v. Mike’s from final judgments. Discovery orders, such as orders quashing Train House, Inc., 27 F.3d 116, 119-122 (4th Cir. 1994) (ancillary (or compelling compliance with) subpoenas, are typically deemed proceeding); Hooker, 965 F.2d at 904 & n.1 (ancillary proceeding) interlocutory and are therefore reviewable only in connection with and In re Subpoena Served on the California Public Utilities an appeal from a final judgment (see In re Subpoena Served on Commission, 813 F.2d at 1476; but see Caswell, 399 F.2d at 422). the California Public Utilities Commission, 813 F.2d 1473, 1476 (9th Cir. 1987)). Whether an immediate appeal lies from an order quashing (or compelling compliance with) a subpoena generally depends on the: „„Relief that the court ultimately orders. „„Court that issues the order. ORDER DENYING DISCOVERY An order denying discovery from a non-party is not immediately appealable if that order is entered by the court where the underlying action is pending (see Caswell v. Manhattan Fire & Marine Ins. Co., 399 F.2d 417, 422 (5th Cir. 1968)). By contrast, an order denying discovery from a non-party in an ancillary proceeding is immediately appealable if the ancillary proceeding is pending in a district court located in a different circuit from where the underlying lawsuit is pending (see Nicholas v. Wyndham Intl., Inc., 373 F.3d 537, 541-42 (4th Cir. 2004) and Cusumano v. Microsoft Corp., 162 F.3d 708, 712 (1st Cir. 1998)). Circuit courts are split on whether an immediate appeal may lie from an order denying discovery from a non-party where theCopyright © 2010 Practical Law Publishing Limited and Practical Law Company, Inc. All Rights Reserved. 12
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