Third-party subpoena requests are frustrating because they are usually broad in scope and take up considerable time and resources. Not to mention, your client bears the burden without any gain. The temptation to not comply may be there, but if the request is a valid one, with no grounds for refusing, it’s in your client’s best interest to comply or face contempt charges. Of course, your client can make a motion to quash or modify the subpoena if the requirements don’t allow sufficient time to comply, exceed geographical limits, seek disclosure of protected information, or impose an extraordinary undue burden.
The third-party subpoena creates two burdens for the nonparty: time and money. Federal Rule of Civil Procedure 45 was put in place to help protect nonparties from unnecessary burden, and Rule 26, in place since 2015, explicitly mandates that discovery must be proportional to the needs of the case. Rules 45 and 26 can protect nonparties by narrowing the scope of requests and shifting reasonable costs to the litigants. Though this cost-shifting rule can be a persuasive tool for litigants to narrow the scope of the subpoena, the nonparty will still likely incur time and some expense for complying.
Though the relief and level of protection extended to nonparties will vary greatly between courts, determinations on cost sharing are largely based on whether the nonparty has an interest in the outcome, if the nonparty can more easily bear the costs than the litigant, or whether or not the litigation is of public importance.
Time consuming and unrealistic requirements to produce documents in a specific format, in a short period of time, places a heavy burden on a nonparty. For example, a client received a third party subpoena from the FTC who was in litigation with a company that the client had tried to buy from a year prior. The subpoena demand was 19 pages in length, and included eight pages of instructions. The nonparty was required to produce 650 emails that spanned three years from employees across several offices, and they had to pay a fee to have the documents searched and compiled—all in an unrealistic short time frame.
Most attorneys, utilizing every staff member possible can’t handle this request quickly. So how does your firm deal with clients who have received third party subpoenas? One solution is to let JURIS Litigation Technology Solutions take care of those subpoenas for you and your client. We can help you keep response costs down by:
Conducting search
Processing results
Preparing production based on agency specifications
Our team of litigation support experts can take care of the time-consuming details for your client’s third party subpoena.
Frequently Asked Questions
What should a lawyer do when a client receives a broad third-party subpoena?
The first step is to evaluate whether the subpoena is valid, proportional, and realistically achievable within the requested timeframe. If the request is overly broad, seeks protected information, exceeds geographic limits, or creates an extraordinary burden, counsel may consider moving to quash or modify it. Otherwise, the client will generally need a defensible plan for collecting, searching, processing, and producing the requested information.
Can a nonparty challenge a subpoena that is too burdensome?
Yes. A nonparty may be able to ask the court to quash or modify a subpoena if it does not allow enough time to comply, seeks protected material, exceeds permitted geographic limits, or creates an undue burden. Federal discovery rules also require discovery to remain proportional to the needs of the case.
Who pays the eDiscovery costs for responding to a third-party subpoena?
A nonparty may still incur some costs when responding, but courts can sometimes shift reasonable expenses to the parties involved in the litigation. Factors may include whether the nonparty has an interest in the outcome, which party is better able to absorb the expense, and whether the underlying litigation serves a broader public interest.
How can a legal technology professional reduce the cost of responding to a subpoena?
A legal technology professional can help narrow and streamline the response by conducting targeted searches, processing the results, and preparing the final production according to the requesting party’s specifications. This can reduce the amount of attorney and staff time spent manually locating and organizing electronically stored information.
Why are third-party subpoenas involving email often difficult to manage?
Email requests can quickly become complicated when they involve multiple employees, offices, date ranges, or years of communications. In one example described by JURIS LTS, a nonparty had to produce 650 emails spanning three years from employees across several offices within a short timeframe. Managing that volume requires efficient search, processing, and production workflows.
Can a subpoena require documents to be produced in a specific electronic format?
Yes. A subpoena or agency request may include detailed requirements for how electronically stored information must be produced. Those specifications can add significant work, especially when documents must be searched, processed, organized, and delivered in a particular format. An eDiscovery provider can help prepare the production to meet those technical requirements.
How does proportionality apply to third-party eDiscovery requests?
Proportionality means discovery should be reasonable in relation to the needs of the case rather than unnecessarily broad or expensive. Federal Rules of Civil Procedure 26 and 45 provide protections that can help nonparties challenge excessive requests, narrow the scope of discovery, or seek cost sharing when compliance creates a significant burden.
When should a trial lawyer involve an eDiscovery professional after receiving a third-party subpoena?
An eDiscovery professional should ideally be involved early when the subpoena includes large email collections, multiple custodians, complicated search requirements, tight deadlines, or specific production instructions. Early technical support can help determine the volume of responsive information, estimate the effort required, and create a more efficient and defensible production process.
