By

A Subpoena Seeking Documents from a Third Party That Could be Obtained from a Party is Unduly Burdensome

The discovery standards and case law applied when seeking documents or information from non-parties differ from those of a party to the litigation. The limits on discovery should be more narrowly construed when non-parties are the target of discovery. Dart Indus. Co., Inc. v. Westwood Chemical Co., 649 F.2d 46, 649 (9th Cir. 1980) (recognizing that although there is a strong policy in favor of liberal discovery, there is potential for abuse in applying that policy to nonparties); In re Subpoena to Apple, Inc., No. 5:14-cv-80139-LHK-PSG, 2014 WL 2798863, *2 (N.D. Cal., June 19, 2014) (“Discovery may be limited to ‘protect third parties from harassment, inconvenience, or disclosure of confidential documents.'” quoting Dart, supra); Edwards v. California Dairies, Inc., 2014 WL 2465934 at *2 (“While discovery should not be unnecessarily restricted, discovery is more limited to protect third parties from harassment, inconvenience, or disclosure of confidential documents.” citing Dart, supra).  Pursuant to Rule 45(c)(2)(B), which allows the answering party to timely object to the Subpoena, once a party raises a timely objection to a Subpoena, it is not required to produce documents, or even search for them, until the subpoenaing party obtains an order compelling the same.  Id. (citing Pennwalt Corp. v. Durand-Wayland, Inc., 708 F.2d 492, at 494 & n. 5 (9th Cir. 1983)); see also Forsythe v. Brown, 281 F.R.D. 577, 587 (D.Nev.2012) report and recommendation adopted, 3:10–CV–00716–RCJ, 2012 WL 1833393 (D. Nev. May 18, 2012).

In determining whether there is an undue burden placed upon a non-party by a subpoena, a Court may consider whether the information could be obtained from a party to the litigation or from a party more closely related to the party to the litigation. In G.K. Las Vegas Ltd. Partnership v. Simon Property Group, Inc., the plaintiff subpoenaed non-parties to obtain information regarding the lawsuit.   G.K. Las Vegas Ltd. Partnership v. Simon Property Group, Inc., No. 2:04–cv-01199-DAE-GWF, 2007 WL 119148, at *4-5 (D. Nev. Jan. 9, 2007).  The defendant objected that the subpoenas were unduly burdensome to the non-parties because the information could be obtained from the defendant. The court stated that “there [wa]s a legitimate question whether relevant documents and information sought by the subpoenas [we]re obtainable from Defendants or through some other sources or means that [we]re more convenient, less burdensome, or less expensive.”  Id. at *5.

The Court has an inherent right to limit discovery where it may “be obtained from some other source that is more convenient, less burdensome, or less expensive.”  Fed. R. Civ. P. 26(b)(2)(C)(i).   If discovery of the documents is required, the court should require them from the party to the litigation or its owner and not from a non-party. Rule 45 is not the proper procedure to seek discovery more appropriately subject to a request to a party to the litigation pursuant to Rule 34.  See, e.g., Slama v. City of Madera, 2001 W.L. 6100511, *2 (E.D.Cal.2011) (finding Rule 45 subpoena improper because discovery aimed at parties governed by other discovery rules) (as cited by Singleton v. Jupiter Communities, LLC, 2:12-CV-02056-JAD, 2014 WL 251659 (D. Nev. Jan. 22, 2014)).

About the Author

Jay Young is a Las Vegas, Nevada attorney. His practice focuses on business law, business litigation, and acting as an Arbitrator and Mediator.

Mr. Young can be reached at 702.667.4868 or at jay@h2law.com.