*****Disclaimer: This is not legal advice and is for educational purposes only. This does not create an attorney-client privilege.
Rodriguez Law Group, Inc. March 7, 2022
The third-party subpoena is a very important and powerful tool in your arsenal to use in litigation. A third-party subpoena is a court document that can compel an individual or entity who is not even a party to the case in question to contribute information to the case.
A subpoena can function in a few different ways. One type of subpoena is a subpoena to appear. This type can compel someone to appear and testify under oath for a case that they themselves are not even a party to. Another type would be to produce records and sometimes testify about them in person as well.
It is becoming ever more common for parties to a case to issue subpoenas to gather the necessary information for their lawsuits from non-participating parties. That information may comprise witness testimony, documents, and/or even onsite inspections of property. The parties or litigants must use subpoenas issued pursuant to either the state or federal version of Rule 45 of the Rules of Civil Procedure in order for them to legally compel the party to appear or produce the records in question.
Third-party subpoenas are typically issued to non-litigants by the attorneys representing one or the other party in the lawsuit. Although the attorney does not need get the Court’s permission prior to issuing the subpoena, Rule 45 does contain some provision meant to protect the subpoenaed nonparties from undue burden and other potential abuses of the subpoena process.
How an individual or company responds to a third-party subpoena will depend on what is being requested by the subpoena. But whatever the limits of the ultimate response will be, the subpoenaed party has an initial, affirmative obligation to locate, identify and preserve all relevant, potentially responsive information pending resolution of any objections or motions regarding the permissible scope of the subpoena. In the context of requesting documents from a corporation, for example, this obligation requires the subpoenaed corporation immediately to issue what’s called a “litigation hold” to all potential custodians of responsive documents to prevent those custodians from intentionally or unintentionally destroying relevant documents in their possession. So whether or not the party plans to object to the subpoena in question, they are legally obligated to preserve the documents in the meantime and can face legal ramifications if they are found to have destroyed evidence.