Third-Party Subpoenas in the United States

Response #1: These situations are frustrating. We also receive a large number of third-party subpoenas, and like you, our first approach is to have a conversation with the issuing attorney to limit the scope, if necessary. Most subpoenas we receive are for matters before California courts so we review the special requirements that apply to consumer and employee records, which impose additional requirements that are frequently not followed and so we can decline to produce requested documents on that basis. Sometimes the consumer or employee him- or herself objects to the production of records and so we get to wait for a court order or an agreement of all the parties and the consumer/employee before we have to produce, which usually limits the scope. How useful this might be to you depends on the procedures applicable to the subpoena you receive, which are probably different.

What is probably most helpful to you though might be the ability to seek cost shifting. If the court believes that compliance with a document subpoena might create an undue expense for you the court can shift the cost of compliance to the issuing party, at least under Federal Rules of Civil Procedure Rule 45(d)(2)(B)(ii). It's not automatic, courts may consider whether you, as a non-party, have an interest in the outcome, the ability of the various parties/non-parties to bear the costs, and if it is of public importance. Likely though discussing cost-shifting will give you additional leverage in your discussion with the issuing attorney and if you do have to suffer an expense, a way to try to recover it.¹

 

Response #2: I agree with the response above. I find that a discussion with the issuing party's counsel usually results in a successful narrowing of the request. I also find that informing the issuing party's counsel that he or she will have to get an order because the target objects or because of potential confidentiality or privacy issues helps to narrow or delay the process and to underscore the expenses that will be involved in compliance with the subpoena.²

 

Response #3: Following up on Response #1's suggestion about cost-shifting, California Evidence Code 1563(b)(2) allows a non-party to withhold delivery of the subpoenaed records until payment of all reasonable costs is made ("witness may demand payment of costs pursuant to this section simultaneous with actual delivery of the subpoenaed records, and until payment is made, is under no obligation to deliver the records"). Therefore, when I speak with an overbearing attorney, I will reference this payment requirement and then provide an initial estimate of costs for their overbroad request. At that point, the attorney usually becomes more reasonable with the scope of their request.³

 

Response #4: Indiana has a liberal expense recovery trial rule [34(C)] that permits recovery of expenses, including attorney fees "proximately incurred" by a non-party. The federal rules are more strict. Case law suggests a communication before seeking expenses. Agreement language for the response is below. I'm not confident the collection fee language is enforceable. The Indiana case is 15 N.E.3d 628.

 

SUBPOENAED DOCUMENT AND SECURITY SYSTEM VIDEO REQUEST AND RELEASE AGREEMENT

Documents: _________________________________________________________________

Video Date (Date of Occurrence): _____________

Time Period Requested: From: _____________ a.m./p.m. to _______________ a.m./p.m.

Store Location: __________________________________________

We received your subpoena by certified mail on ______________, 20____. In addition to the legal department, we often must request assistance from other departments, including HR, Operations, and IT to respond to Trial Rule 34(C) third party subpoenas. If we do not object under Trial Rules 34 or 45 or other basis, we will respond. To respond, we will charge and you will pay expenses, including attorney fees (for, among other activities, consultation on the scope of the subpoena, determine what we must provide, and to review the response), that are proximately incurred with a minimum charge of $75. If we incur and charge more than the minimum charge, we will keep records of our activities. If we must collect these expenses, you agree to pay our costs of collection, including attorney fees.

These same terms apply if you request to view materials without an issued subpoena and we agree to permit the access.

We reserve the right to object to the request for any reason under the Trial Rules. We reserve the right to request confidential treatment of applicable records. We will not release any medical information without a written consent to release medical information signed by the affected person.

The document(s) and security system video(s) shall always remain the property of __________________, even while in the custody of ______________________________, and shall be returned to ______________ upon request.

___________________________ authorizes the use of the document(s) and video(s) by ___________________________ for investigational purposes only. The material(s) may not be released to any third party without the prior written consent of _______________. No third party will be allowed access to the material(s) for reasons such as, but not limited to, copying, broadcasting, and/or viewing.

The material(s) shall only be used as necessary for the purpose of investigation and prosecution.

This agreement entered into this _________ day of ________________, 20____.

Date: __________________________ Date: __________________________⁴

 

Response #5: I would be curious if anyone has considered this in client contract context. We also have seen an uptick in document requests and usually it involves one of our customers. Has anyone put the payment burden on those customers for the time/expense in responding?⁵

 

Response #6: I seldom see a well-drafted subpoena. They are inevitably overly broad. I always draft a letter to the attorney that served the subpoena, and I usually copy his/her opposing counsel.

In addition to the overly broad objection, I object on the basis that the jurisdiction requires parties to minimize the cost and burden on non-parties. If compliance really is going to be burdensome for electronic data, a good practice is to prepare a supporting affidavit for your IT person sign, laying out the time and expense required. You may also contact the attorney for the party that did not serve the subpoena and remind them that they can and should object on relevance grounds.⁶