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Subpoenas In Civil Litigation

Steven R. Schoenfeld, Esq. September 25, 2012 Trial Partner, Dorsey & Whitney LLP 51 West 52nd Street New York, NY 10019-6119 (212) 415-9341 schoenfeld.steven@dorsey.com www.dorsey.com

Call in toll free at 800-536-9136 and use 7-Digit Access Code 415-9341

DISCLAIMER. This presentation is intended for in-house lawyers and is for general information and educational purposes only. Nothing in this presentation either in writing or in any audio or video recording should be relied upon or used as the basis for making decisions without advice of counsel or legal representation.

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Use of Subpoenas

• When is the subpoena power needed?– Compel pre-trial discovery

• documents, including electronically stored information• discovery deposition• trial deposition

– Compel production of evidence at trial• the appearance of a witness (even a party) at trial• the production of documents, including “originals,” at trial

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Use of Subpoenas cont’d.

• Do you need a subpoena?– Not needed for party discovery

• E.g., deposition of a corporation by designated witnesses under Fed. R. Civ. P. 30(b)(6) depositions

• But need subpoenas to compel appearance of individual corporate employees as “non-parties”

– Informal “discovery”– A cooperating witness

• Will the witness provide an affidavit for dispositive motions?• Will the witness appear at trial voluntarily?• Is there a risk otherwise (e.g., witness could become

unavailable or unwilling)? Then the subpoena may provide back-up to assure that you obtain the testimony.

• Will a subpoena antagonize the witness?

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Federal Subpoenas: Geographic Reach

Discovery may be obtained anywhere in the U.S.

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Federal Subpoenas: Geographic Reach cont’d.

• Effectively nationwide for discovery.– a subpoena may be served at any place within the district of the issuing

court. Fed. R. Civ. P. 45(b)(2)(A).– and a subpoena may be “issued” by any Federal district court where the

deposition or document production will occur for an action in any other Federal district court. Fed. R. Civ. P. 45(a)(2).

• 100-mile bulge rule. A subpoena may be served outside the district of the issuing Federal district court as long as it is within 100 miles of the place specified for compliance. Fed. R. Civ. P. 45(b)(2)(B).

– E.g., SDNY subpoena to a non-party witness in northern New Jersey for a deposition or trial in Manhattan

• The reach of Federal subpoena power is also co-extensive with state subpoena power. A subpoena may be served at any place within a state where a Federal district court is located if allowed under state law for state courts. Fed. R. Civ. P. 45(b)(2)(C).

– E.g., NY statewide– E.g., a EDNY subpoena may be issued for a non-party witness in Buffalo,

NY for deposition or trial in the EDNY

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Federal Subpoenas: Geographic Reach cont’d.

• But there are witness protections.– a court must quash a subpoena that requires a person who

is not a party or party officer to travel more than 100 miles from where that person lives or works or regularly transacts business in person. Fed. R. Civ. P. 45(c)(3)(A)(ii).

– however, a person can be required to travel more than a 100 miles within a state for a trial although the court may protect such person from the substantial expense of doing so. Fed. R. Civ. P. 45(c)(3)(B)(iii).

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Subpoenas: Geographic Reach For New York State Courts

• NY State– Statewide

– Out-of-state for NY actions. May need “commissions” (requests) for subpoenas to be issued by other state courts for a NY state court action

– In NY for out-of-state actions. NY lawyers may sign NY state court subpoenas for actions outside New York CPLR 3119

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Issuing and Serving Subpoenas in a Federal Civil Case

• Form of the subpoena (next slides)

• Document requests – Alone or combined with a request for a deposition– Categories of documents– Specify form of production for electronically stored

information

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Issuing and Serving Subpoenas: Fair Play Requirements

• Duty to non-parties– Reasonable time to comply. Fed. R. Civ. P.

45(c)(3)(A)(i)• usually at least two weeks, and maybe more depending on the

circumstances

– Reasonable steps to avoid imposing undue burden and expense on the subpoena target. Fed. R. Civ. P. 45(c)(3)(1)

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Issuing and Serving Subpoenas: Other Fair Play Requirements

• Duty to other parties– Serve notice of the subpoena

• before the subpoena is served if it seeks documents. Fed. R. Civ. P. 45(b)(1) and 30(b)(2) (notice of document subpoena)

• a reasonable time before a deposition. Fed. R. Civ. P. 30(b)(1) (notice of deposition)

– Turn over documents produced (usually requested)

• Gives other parties the chance to respond to the subpoena by, for example, moving to quash if appropriate, or to serve their own subpoena for additional documents.

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Responding to Subpoenas in a Federal Civil Case

• Three possible responses– Written objections– Motion to quash or modify– Responding by compliance -- providing the requested

information (the witness, documents etc.)

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Responding to Subpoenas in a Federal Civil Case: Know Your Dates

• Important because the dates by which you must object and respond depend on:– the date the subpoena was served– the date of the requested production or appearance– whether the time allowed is reasonable

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Responding to Subpoenas in a Federal Civil Case: Know Your Dates cont’d.

• Written objections to a subpoena seeking documents must be served the earlier of 14 days after service or the response date in the subpoena. Fed. R. Civ. P. 45(c)(2)(B)

• May need to get an extension

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Responding to Subpoenas For Documents: Written Objections

• Written objections– Nature of the objections– Effect of a written objection: do not need to produce

unless compelled by court order. Fed. R. Civ. P. 45(c)(2)(B)

– Serve to preserve rights– Then try to negotiate to narrow or avoid subpoena,

especially if burdensome, before motion practice– Cannot usually avoid producing information in

response to reasonable subpoena requests

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Responding to Subpoenas in a Federal Civil Case – Motion to Quash

• Time to file– before compliance date– but if the subpoena does not give a reasonable time to

respond, that fact alone may be a basis to quash and, in any event, the Court is not likely to find the motion untimely

– usually work out a time for a motion

• File in the Court that issued the subpoena

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Responding to Subpoenas in a Federal Civil Case –Motion to Quash cont’d.

• Using the motion to quash– Must use to stop or limit a subpoena requesting witness

attendance at a deposition, hearing, or trial– May use for subpoena seeking documents, although the

more typical response is written objections– May seek other relief including a protective order unless

one can be negotiated– Court may order compliance with subpoena on conditions

(e.g., limits on the requests, compensation for expenses to respond etc.)

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Responding to Subpoenas in a Federal Civil Case – Production and Privilege

• Produce documents– as kept in ordinary course of business– labeled and organized by categories in the demand

• Unless the form is specified in the subpoena, electronically stored information must be produced in a reasonably usable form or the form in which it is maintained in the ordinary course of business

• Privilege objections; must do a privilege log

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Subpoena Enforcement: Motion to Compel

• Meet and confer about objections

• Be reasonable– Time and expense of motion practice– Courts are sympathetic to non-parties– The rules are designed to protect non-parties who

have no stake in the litigation

• A motion may be necessary to secure compliance

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Questions About Subpoenas

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About Us

Steven R. Schoenfeld, Esq. Steve is a Trial Partner in the New York Office of Dorsey & Whitney LLP. He has been practicing for more than 20 years, and handles a wide variety of civil litigation for his clients, including commercial, intellectual property and bankruptcy litigation. Steve regularly speaks to in-house counsel and bar association groups regarding managing litigation. His full biography is on the Dorsey web site, www.dorsey.com.

Dorsey & Whitney LLP is committed to our clients’ businesses, to client service, and to our clients’ success. Dorsey is a go-to law firm for businesses large and small. Our partnership began in 1912 in order to meet the needs of a prominent Minneapolis business, and we have become an international firm since then. But our focus on client service hasn't changed. Each day, from 19 offices in the United States, Canada, Europe and Asia, more than 600 Dorsey attorneys and 700 support staff, including paralegals, information technology professionals, case-management specialists and more, team up with clients to create solutions built on service, collaboration and a determination to succeed. To learn more, visit www.dorsey.com.

Contact: Steven R. Schoenfeld, Esq.Trial Partner, Dorsey & Whitney LLP51 West 52nd StreetNew York, NY 10019-6119(212) 415-9341schoenfeld.steven@dorsey.com