Nonparty subpoenas, corporate depositions, document requests, and lost electronic information (Rules 30(b)(6), 34, 37(e), and 45)

Black-letter propositions

1. 01

   Any person who is at least 18 years old and not a party may serve a subpoena, and serving a subpoena that requires attendance requires delivering a copy to the named person and tendering the fees for one day's attendance and the mileage allowed by law, unless the subpoena issues on behalf of the United States.

2. 02

   A subpoena may command a person to attend a trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly transacts business in person, or within the state where the person resides, is employed, or regularly transacts business in person if the person is a party or a party's officer or would not incur substantial expense to attend trial.

3. 03

   A subpoena may command production of documents, electronically stored information, or tangible things at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.

4. 04

   A person commanded to produce documents or things need not appear in person at the place of production unless also commanded to appear for a deposition, hearing, or trial.

5. 05

   A person commanded to produce may serve a written objection before the earlier of the time specified for compliance or 14 days after the subpoena is served, and after an objection the serving party may move to compel in the court for the district where compliance is required, with the order protecting a nonparty from significant expense.

6. 06

   A party or attorney issuing a subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to it, and the court for the district where compliance is required must impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, for failure to do so.

7. 07

   A party may name a corporation, partnership, association, governmental agency, or other entity as the deponent and must describe with reasonable particularity the matters for examination, and the organization must designate one or more persons to testify on its behalf.

8. 08

   The organization's designees must testify about information known or reasonably available to the organization, and the serving party and the organization must confer in good faith about the matters for examination before or promptly after the notice or subpoena is served.

9. 09

   A party may serve on any other party a request to produce documents or electronically stored information in the responding party's possession, custody, or control, and the responding party must respond in writing within 30 days after being served, stating with specificity the grounds for any objection.

10. 10

    If electronically stored information that should have been preserved is lost because a party failed to take reasonable steps and it cannot be restored or replaced, the court on finding prejudice may order measures no greater than necessary to cure it, but may presume the information was unfavorable, give an adverse-inference instruction, or dismiss or enter default only on finding that the party acted with intent to deprive another party of its use.

Use this attack sequence under time

Common wrong turns

• A nonparty can be commanded to a deposition only within the geographic limits, even when the lawyer wants it elsewhere.
• A designee under Rule 30(b)(6) must testify to information reasonably available to the organization, and not only what the person personally knows.
• An adverse-inference instruction or default for lost electronic information requires a finding of intent to deprive.
• A nonparty served with a subpoena to produce documents can object in writing instead of appearing.

Worked example

A party's litigation hold is ignored and a manager deletes emails that should have been kept. The emails cannot be recovered. The opposing party asks for a jury instruction that the emails would have been unfavorable, and there is no evidence the manager meant to hurt the case.

Practice this topic

Subpoenas to nonparties

Rule 45(b) provides that any person at least 18 years old who is not a party may serve a subpoena, that a subpoena requiring attendance must be served by delivering a copy and tendering one day's fees and mileage, and that it may be served anywhere in the United States. Rule 45(c) provides that a subpoena may command attendance at a trial, hearing, or deposition within 100 miles of where the person resides, is employed, or regularly transacts business in person, or within the state for a party, a party's officer, or a trial witness who would not incur substantial expense, and may command production within 100 miles.

Rule 45(d) provides that a person commanded to produce need not appear in person unless also commanded to attend a deposition, hearing, or trial, that a written objection must be served before the earlier of the time for compliance or 14 days after service, that the serving party may then move to compel in the district where compliance is required, that the order must protect a nonparty from significant expense, and that a party or attorney issuing a subpoena must take reasonable steps to avoid undue burden or expense.

Organizations and documents

Rule 30(b)(6) provides that a party may name a corporation, partnership, association, governmental agency, or other entity as the deponent, must describe the matters for examination with reasonable particularity, that the organization must designate one or more persons to testify on its behalf, that the parties must confer in good faith about the matters, and that the persons designated must testify about information known or reasonably available to the organization.

Rule 34 provides that a party may serve on any other party a request to produce documents or electronically stored information in the responding party's possession, custody, or control, that the responding party must respond in writing within 30 days after being served, and that the response must either permit the inspection or state with specificity the grounds for objecting.

Lost electronic information

Rule 37(e) provides that if electronically stored information that should have been preserved in anticipation or conduct of litigation is lost because a party failed to take reasonable steps to preserve it and it cannot be restored or replaced, the court on finding prejudice may order measures no greater than necessary to cure it, and only on finding intent to deprive may it presume the information was unfavorable, instruct the jury that it may or must presume that, or dismiss the action or enter a default judgment.

Frequently asked questions