Responding to a Subpoena

Responding to a Subpoena

Absent a subpoena, a witness is generally free to refuse an informal interview.¹ When the witness refuses, the lawyer may have to go to court, and the formal discovery devices come into play.² A subpoena compels what a request cannot, and it often compels a person who had no part in choosing the lawsuit. Rule 45 answers that problem with protections for the person served. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that subjects a person to undue burden.³ To quash a subpoena is to have the court cancel it; to modify it is to have the court narrow its demands.

The protections exist because of who writes the demand and who pays to meet it. As the preceding section showed, a subpoena issues on a clerk's signature or an authorized attorney's, with no judge reading it first, so the issuing party never has to justify the demand in advance. That party also does not pay to answer it. The cost of searching files, traveling, or setting aside time falls on someone with no stake in how the suit ends. A demand that costs its sender nothing invites overreach, and the undue-burden ground puts a judge between the demand and the person who must meet it.

A person served has three courses: comply, object in writing, or ask the court to quash or modify. The first subsection below covers the second and third. The grounds for quashal then divide by how much room the court has. Some leave it none: alongside undue burden, the court must quash or modify a subpoena that requires disclosure of privileged or other protected matter when no exception or waiver applies.⁴ Others leave it discretion, as with a subpoena that would require disclosing a trade secret or other confidential research, development, or commercial information.⁵ The category decides whether a recipient who proves a ground is entitled to relief or must persuade the court to grant it.

Two more duties arise once the person decides what to hand over and what to hold back. A person producing documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.⁶ A person withholding subpoenaed information as privileged or protected must expressly make the claim and describe the withheld material in a way that lets the parties assess the claim without revealing the protected information itself.⁷ The recipient knows what the files contain and the requester does not, so without an organized production or a described claim the requester could neither use what arrived nor test what was kept back. The last two subsections take up those duties.

Objections and Motions

A person commanded to produce documents, electronically stored information, or tangible things, or to permit the inspection of premises, need not appear in person at the place of production or inspection unless also commanded to appear for a deposition, hearing, or trial.⁸ The reason lies in what each command is for. Attendance exists so that a witness can be questioned. A command to produce or to permit inspection asks for materials and access, and the person's own presence at a conference-room table adds nothing to either, so the rule declines to impose the cost of a personal trip that serves no purpose. The exemption has a built-in limit: a subpoena that pairs a production command with a command to attend a deposition, hearing, or trial requires the person to appear for that proceeding, and the exemption then has nothing left to protect.

Rule 45(d)(2)(B) gives the recipient a cheap first way to resist without going to court. A person commanded to produce documents or tangible things or to permit inspection may serve on the party or attorney designated in the subpoena a written objection to inspecting, copying, testing, or sampling any or all of the materials, to inspecting the premises, or to producing electronically stored information in the form or forms requested.⁹ Each feature of that sentence does work. A writing gives the issuing party a record of exactly what the recipient refuses. Directing the objection to the party or attorney designated in the subpoena delivers it to someone who can answer it, without making the recipient trace who stands behind the paper. The words any or all let the recipient object to one category and leave the rest alone, and the reference to the form of electronically stored information lets the recipient contest how data are delivered without disputing that they must be delivered.

Timing controls whether the objection counts. The objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.¹⁰ Two clocks start when the subpoena arrives, and the shorter one governs. A short, fixed window protects the issuing party, who needs time to react before the compliance date: a lawyer who learns of an objection while time remains can narrow the demand, negotiate, or go to court, but an objection that surfaces on the compliance date leaves no room for any of that. The 14-day mark controls when compliance is set far out, and the compliance date controls when it falls less than 14 days after service. The usual exam error is to read the deadline as the compliance date alone, which overlooks the 14-day mark whenever compliance is more than 14 days away.

The rule goes on to say what follows once an objection is made, and its effect is to move the dispute toward a court ruling instead of leaving the recipient to refuse in silence and the issuing party to guess whether the paper will ever be honored.¹¹

A motion is the second route, and it rests on the grounds the next subsections take up. On timely motion, the court for the district where compliance is required must quash or modify a subpoena that subjects a person to undue burden or requires disclosure of privileged or other protected matter when no exception or waiver applies.¹² The forum follows the person: a person objecting to a subpoena can seek relief in the court for the district where compliance is sought.¹³ The issuing party chose the court that holds the case, but the fight over whether a stranger must comply takes place where the stranger would have to go to comply.

On the motion, a court determining the propriety of a subpoena balances the relevance of the discovery sought, the requesting party's need, and the potential hardship to the person subject to the subpoena.¹⁴ Hardship earns a real place on the scale because the recipient did not choose the litigation and gains nothing from its outcome, yet bears the cost of searching files and giving up time. And because the motion must be timely and the objection window never runs past 14 days after service, a recipient with a problem should raise it early.

The compliance court need not be the court that finally decides. When it did not issue the subpoena, it may transfer a motion to the issuing court if the person subject to the subpoena consents or if the court finds exceptional circumstances.¹⁵ The two conditions balance competing interests. The issuing court knows the case and can best judge whether the discovery is relevant and needed, but the nonparty's chance to litigate close to home would mean little if the issuing party could move the dispute away on request. Consent therefore opens the door, and without consent the door opens only on a finding of exceptional circumstances. An issuing party's preference for its own judge supplies neither. A Denver nonparty who moved to quash a subpoena from a Chicago case can agree to have the motion decided in Chicago, and it will be sent there. A Denver nonparty who refuses has the motion decided in Denver unless the Denver court finds exceptional circumstances.

Transfer carries protections for the nonparty. If the attorney for the person subject to the subpoena is authorized to practice in the court where the motion was made, that attorney may file papers and appear on the motion as an officer of the issuing court, so a transfer does not force the nonparty to hire new counsel in a distant forum. The issuing court may also transfer its order back to the court where the motion was made, so that enforcement can occur where the person is.¹⁶

Objecting and moving are the recipient's ways of putting a disagreement before a court, and contempt is what the court holds in reserve for the recipient who offers no disagreement at all. The court for the district where compliance is required, and after a transfer the issuing court as well, may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it.¹⁷ Each phrase narrows the power. Having been served ties contempt to the service requirements discussed earlier, so a person who was never validly served is outside it. Without adequate excuse leaves room for a recipient with a real reason, and a timely objection or motion is the natural way to put that reason before the court before any default occurs. An order related to it brings in the court's own rulings, so a recipient who loses a motion to quash and still refuses faces contempt for defying the order as well as the subpoena.

Mandatory Quashal

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that falls within any ground Rule 45(d)(3)(A) lists.²⁰ Two grounds produce most of the disputes. A subpoena that requires disclosure of privileged or other protected matter, if no exception or waiver applies, must be quashed or modified,²¹ and so must a subpoena that subjects a person to undue burden.²² The two remaining mandatory grounds, a subpoena that fails to allow a reasonable time to comply and one that requires compliance beyond the geographic limits of Rule 45(c), repeat points from the earlier discussion of the place of compliance.

Once the movant establishes a listed ground, the court has no discretion to let the subpoena stand as written. Modify leaves it a choice of remedy, since it may cancel the subpoena or narrow it enough to cure the defect. That is what separates these grounds from the discretionary one in the next subsection, where a court that finds the ground may still decline relief. Each mandatory ground protects an interest that the issuing party cannot be trusted to weigh. A privilege belongs to its holder and exists apart from the lawsuit, and disclosure can destroy it, because a communication cannot be un-disclosed once handed over. Freedom from undue burden protects a stranger from paying heavily for a dispute that is not hers. The issuing party writes the subpoena without judicial review and bears none of the cost of answering.

The privilege ground has two parts that do different work. Privileged or other protected matter reaches attorney-client privilege and other evidentiary privileges, and it also reaches protections that work like privileges without carrying the name, such as protection for materials prepared for trial.²³ The qualifier if no exception or waiver applies keeps the ground from reaching further than the protection itself. Privileges have recognized exceptions, and a holder who voluntarily discloses a protected communication can lose the privilege, so the movant must show both that the matter is protected and that nothing has removed the protection. The typical recipient is a nonparty holding someone else's privileged files, such as a law firm holding a client's advice.

The answer changes once a waiver enters the picture. Had the manufacturer voluntarily handed the firm's advice memorandum to the plaintiff during earlier settlement talks, the protection for that memorandum would likely be gone, and the mandatory ground would no longer cover it. The firm could still invoke the ground for any part of the file untouched by the waiver, and the court's task would be to sort the protected material from the unprotected. How a recipient must present such a claim when it withholds material is taken up in the last subsection.

The undue-burden ground rests on a different logic, because it concerns cost and not rights. Compliance with any subpoena costs something, so the ground reaches only burden that is undue, meaning excessive when set against what the discovery is worth.²⁴ The position of the person served explains why the ground is mandatory. A party accepted the burdens of litigation by suing or being sued, while a nonparty accepted none and gains nothing from the outcome, yet must search files and give up time on the strength of a paper no judge reviewed. Courts have traditionally relieved nonparties from substantial burden, and subpoenas directed to them can draw heightened scrutiny.²⁵ A demand that would pass unnoticed against a party may therefore be unduly burdensome when aimed at a stranger to the suit.

Gonzales v. Google, Inc. illustrates the balancing test for a nonparty subpoena. A court determining whether a subpoena is proper weighs the relevance of the discovery sought, the requesting party's need, and the potential hardship to the person subject to the subpoena.²⁶ Relevance comes first: material with no bearing on the case cannot justify any burden on a stranger, so a movant who shows that part of a demand has no connection to any claim or defense needs no showing of hardship for that part. For relevant material, the contest is between need and hardship, and the label nonparty reminds the court why discovery from third parties carries limits.

Whitlow v. Martin shows the balance tipping toward the nonparty on a concrete record. The court rejected objections to other requests, including one that the requested information was not reasonably accessible, yet it accepted nonparty IDOT's assertion that conducting the proposed search would take two years. It treated nonparty status as a significant factor under the undue-burden clause as then numbered, and it concluded that the burden far outweighed the benefit of production.²⁷ Two features carry over to new facts. The court judged burden request by request, so IDOT's losses on other objections did not defeat its win on this one. And the showing that succeeded was a concrete estimate of what the search would take, not a general complaint about inconvenience.

Both this processor and the department in Whitlow held electronic data bearing on a case. What moves the answer is the size of the hardship next to the benefit, an hour of export work against two years of searching. Because the test weighs, a nonparty cannot win by pointing to its status alone, and an issuing party cannot defend a sprawling demand by pointing to relevance alone. The usual exam error is to treat any cost to a nonparty as undue, or to treat nonparty status as an exemption. Both mistakes drop the weighing that the word undue requires.

Quashal puts the work on the recipient, who must learn the deadline, find a lawyer, and file in time, while the issuer who drafted an overbroad demand pays nothing for having written it. Rule 45(d)(1) addresses that imbalance at the front end. A party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to it, and the court for the district where compliance is required must enforce that duty and impose an appropriate sanction, which may include lost earnings and reasonable attorney's fees, on a party or attorney who fails to comply.²⁸ Each part of the rule closes a gap. The duty falls on the drafter because the drafter knows the case and can limit the demand by time period, subject, or custodian before anyone is burdened. The sanction reaches both party and attorney, so neither can blame the other for overbreadth. The reference to lost earnings and fees lets the court make the recipient whole for the cost of resisting, which quashal alone leaves with the recipient. And because the enforcing court is the compliance court, the recipient can seek quashal and a sanction in the same forum.

The sanction turns on the issuer's conduct in drafting and serving the subpoena, while the quashal ground turns on the burden the subpoena imposes, so the two questions overlap without being identical.

Permissive Quashal

Rule 45(d)(3)(B) gives the court a second set of grounds for relief, and it differs from the mandatory provision in a single verb. To protect a person subject to or affected by a subpoena, the court for the district where compliance is required may, on motion, quash or modify the subpoena if it requires one of the disclosures the rule lists.³² The first item on that list is disclosing a trade secret or other confidential research, development, or commercial information.³³ For privilege and undue burden, the court must act once the movant establishes the ground. Here the movant who establishes the ground has opened the door and nothing more, because the court remains free to decline relief. The protection runs to a person affected by a subpoena as well as one subject to it, which matters because a company whose secrets sit in a recipient's files is affected by a subpoena addressed to the recipient.

The choice of may over must follows from what is at stake. Information whose value depends on secrecy is a different kind of interest from a privilege or from freedom from crushing cost. Once a competitor learns a manufacturing process, the holder cannot take the knowledge back, so the harm of disclosure is real and permanent. Yet the same information can be exactly what a case turns on, as when a claim of product failure depends on how a nonparty's component was made. A rule that required quashal would shield information the case genuinely needs, and a rule that required production would expose a stranger's competitive secrets to a litigant who may be that stranger's rival. Discretion lets the court weigh the need against the injury on the record before it.

The ground has to be read for what it protects. Trade secrets and confidential research, development, or commercial information earn protection because their value lies in being kept confidential, so a movant must show that the material is of that kind and not merely that its disclosure would be unwelcome.

A recipient that resists only because its ordinary business records would be embarrassing stands on weaker footing. Embarrassment is not confidential research, development, or commercial information of the kind the rule protects, so that complaint supplies no discretionary ground, and a recipient whose real objection is the cost of searching and copying must turn to the mandatory undue-burden ground. If the same records would in fact reveal a formula or a pricing method, the answer shifts, because then they carry the competitive value the ground exists to protect.

The court exercises its discretion through the same weighing that governs whether a nonparty subpoena is proper at all, which sets the relevance of the discovery sought and the requesting party's need against the hardship to the person subpoenaed.³⁴ A subpoena aimed at a secret process that is central to the claim stands differently from one aimed at the same secret on a collateral point, and a court can act on that difference only because the rule leaves the choice to it. The usual exam error is to treat a trade secret as a bar to discovery, when the rule treats it as a reason for the court to consider protection.

Quashal is not the only form of protection, because the rule offers a middle course. In the circumstances described in Rule 45(d)(3)(B), the court may, instead of quashing or modifying a subpoena, order appearance or production under specified conditions.³⁵ The serving party gets this route only by showing a substantial need for the material and assuring the nonparty reasonable compensation, and the conditions are designed to ease the hardship that production would cause, with reasonable compensation of the answering party as the standard example.³⁶ The alternative serves both sides of the problem. The serving party obtains material the case requires, and the nonparty receives protection against the cost and exposure that an unconditioned order would impose.

The two groups of grounds therefore work differently. Under the mandatory grounds, a movant who proves the ground wins relief, and the only open question is the remedy. Under the permissive ground, proof of the ground starts a weighing, and the court may quash, modify, order production on conditions, or decline relief. A recipient that resists on trade-secret grounds should accordingly ask for modification or conditions as well as quashal, since the rule gives the court that middle remedy to offer.

Organizing the Production

Rule 45(e)(1)(A) regulates how documents arrive as well as whether they arrive: the responding person must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand.³⁸ The rule offers two ways to comply and requires one of them, and the pairing makes sense once you ask who knows what. The nonparty knows how its own files are arranged, and the requesting party, who has never seen them, does not. Without a rule on arrangement, a recipient could answer by emptying its cabinets into one undifferentiated pile, which would hand over every responsive page while hiding the relevant ones among the irrelevant.

Each option protects the requester in a different way. Documents produced as kept carry their own context, because the folder labels, the grouping of pages, and the sequence show how the business actually used them, and loose sheets would not let the requester reconstruct that. Documents that are organized and labeled give the requester a map from each category in the demand to the pages that answer it. The rule lets the responder choose because the cheaper course depends on the state of the files: a business with orderly records can hand them over as they sit, while one with scattered records can sort and tab them. Neither option requires the responder to rebuild its filing system to suit the requester, which keeps the cost of answering within what a stranger to the suit should have to bear. The course the rule closes off is the middle path of destroying the ordinary order without putting a labeled one in its place.

The difference lies in whether the requester can use what arrives. Either ordinary-course order or a label tied to the demand gives the requester a way in, and the shuffle gives none.

Electronically stored information raises a question that paper does not, because the same e-mail can arrive as a native file with its underlying data, as a page image, or as plain text, and each form is usable in a different way. The subpoena is the first place to address it, since a subpoena may specify the form or forms in which electronically stored information is to be produced.³⁹ When the subpoena names no form, Rule 45(e)(1)(B) fills the gap: the responding person must produce the information in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms.⁴⁰ The default gives the nonparty two safe harbors. It may hand over the data in the form its systems already hold, or it may convert them to something the requester can reasonably use. A requester who plans to search or sort the data has a reason to name a form at the outset, because only a form named in the subpoena displaces the default.

A ceiling sits on top of the default. Rule 45(e)(1)(C) provides that the person responding need not produce the same electronically stored information in more than one form.⁴¹ Each additional form must be generated, checked, and delivered by a responder with no stake in the case, and without a ceiling a requester could demand the same messages in native and image versions and double that burden with no gain in information.

The last rule in this group addresses data that cost far more to search than the search is likely to yield. Under Rule 45(e)(1)(D), the person responding need not provide discovery of electronically stored information from sources that the person identifies as not reasonably accessible because of undue burden or cost.⁴² Backup tapes are the usual example. They hold a large amount of only loosely organized data, so finding relevant material means restoring a tape, viewing its directories, and searching within them for specific files.⁴³ Because the protection attaches to sources the responder identifies, the responder has to say which sources it is setting aside, so that the requester and the court know what has been left unsearched.

The rule then allocates two burdens in sequence. If the requester moves to compel, or the responder moves for a protective order, the responder must show that the information is not reasonably accessible because of undue burden or cost. The responder carries that showing because only the responder knows how its systems store and retrieve data. If the showing is made, the court may nonetheless order discovery from those sources if the requesting party shows good cause, considering the limitations of Rule 26(b)(2)(C), and the court may specify conditions for the discovery.⁴⁴ The court may also decide which party pays the cost of retrieving such not reasonably accessible information.⁴⁵

This provision works differently from the undue-burden ground for quashal. Quashal asks the court, on timely motion, to cancel or narrow the subpoena itself. Here the responder complies with the subpoena and sets aside particular sources by identifying them, and the requester must bring the dispute to the court if the requester wants those sources searched.

Claiming Privilege

Rule 45(e)(2)(A) sets two duties for a person who answers a subpoena but holds some of the requested material back. A person withholding subpoenaed information under a claim that it is privileged or subject to protection as trial-preparation material, meaning material prepared in anticipation of litigation, must expressly make the claim and must describe the nature of the withheld documents, communications, or tangible things in a manner that, without revealing information itself privileged or protected, will enable the parties to assess the claim.⁴⁹ The first duty tells the parties that a claim exists, and the second gives them enough to test it. A recipient who performs only one of them has not complied.

The duty to make the claim expressly follows from the uneven knowledge in a subpoena dispute. The recipient has read its own files, the requester has seen none of them, and the court has seen nothing, so a privilege claim can be reviewed only if someone says that it was made. A recipient that simply leaves protected items out of its production sends a response that looks exactly like one from a recipient that overlooked the items, lost them, or never had them. The requester then has no ground to ask for relief, and the court has no dispute to decide. The same principle governs interrogatories and production requests: the Rules recognize no silent objection, and claims of privilege or work product are proper only when they are expressly stated with a proper foundation.⁵⁰ A recipient's private belief that an item is protected accomplishes nothing until it is stated.

The duty to describe the withheld items answers a harder problem. The requester must be able to test the claim, yet showing the requester the contents would end the very protection the recipient is asserting, so the rule asks for a description of the nature of the items and never for their substance. The standard is functional and sets no format: the description must enable the parties to assess the claim, and it must do so without revealing information itself privileged or protected. Assessing a claim means asking whether an item is the kind of matter the privilege covers and whether anything suggests an exception or a waiver, the same questions a court takes up when a recipient moves to quash a subpoena for privileged matter. Facts such as an item's date, author, recipients, and general subject let the requester ask those questions. A stranger copied on an email shows up in the recipient line, for example, and the requester can notice that without reading the message.

Remove either element of that response and the failure becomes visible. Without the express statement, the list would be an inventory with no claim behind it, and without the list, the statement would assert privilege over six items that nobody could assess. A response saying only that privileged material is being withheld makes the claim and skips the description, so it falls short of the rule. The description can also overshoot. An entry that quotes the lawyer's advice to prove that it is advice reveals the protected information itself, which the rule's own words forbid. The rule requires enough to assess and nothing that gives the privilege away. The usual exam error is to read the description duty as a demand for the contents.

Withholding on a claim handles the item the recipient notices before producing, and Rule 45(e)(2)(B) handles the item noticed afterward. If information produced in response to a subpoena is subject to a claim of privilege or of protection as trial-preparation material, the person making the claim may notify any party that received the information of the claim and the basis for it.⁵² The device is commonly called a clawback, because it lets a producer pull back what it handed over. A producer who must review every page before delivery, with no way to repair a mistake, bears heavy review expense, and one missed document invites a fight over whether the slip cost the protection. The notice gives the producer an orderly way to correct the slip. It must state the claim and its basis so that each recipient can see what is being asserted, and sending it is the producer's choice.

Each step answers a particular risk. To sequester information is to hold it apart without looking at it, and that option lets a recipient who doubts the claim keep a set-aside copy instead of destroying something it may be entitled to use if the court rejects the claim. The bar on use and disclosure matters because the harm of a privilege breach comes from exploiting the information, so freezing use freezes the parties' positions while the dispute is pending. The duty to retrieve reaches back because a notice cannot recall what has already left the recipient's hands, and the word reasonable keeps that duty from becoming a guarantee. Presenting the information under seal lets a recipient who disagrees with the claim obtain a judge's ruling without spreading the material further, and the forum is the compliance court, the same court that hears motions to quash. On the producer's side, the person who produced the information must preserve it until the claim is resolved, which gives the court something to rule on and keeps a producer from ending the dispute by deleting the evidence.

Two points keep the clawback in proportion. The notice does not decide the claim: the rule holds the information in place and leaves the court to resolve whether the privilege holds. And the recipient's duties begin with notice, so the rule imposes nothing until a producer gives one. The usual exam error is to treat the notice as proof that the privilege holds, or to assume that producing a document ends its protection automatically.