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Can the Confidential Documents of a Non-Party be Subpoenaed?

If you have documents which require that you hold them in confidence, but receive a subpoena requiring the disclosure of those documents, can you withhold the documents?  In this situation, non-parties served with a subpoena can file a timely objection and ask the court to quash or modify the subpoena to protect them from disclosing privileged or protected matter, trade secrets or confidential commercial information.  See Fed.R.Civ.P. 45(3); see also United States v. Fed’n of Physicians & Dentists, Inc., 63 F. Supp. 2d 475, 479 (D. Del. 1999).

A confidentiality requirement alone is generally not sufficient to warrant a protective order. “[P]rivate confidentiality agreements do not preclude the production of documents for the purpose of discovery.”  In re C.R. Bard, Inc. Pelvic Repair Systems Products Liability Litigation, 287 F.R.D 377, 384 (S.D. W.Va. 2012) (citing Zoom Imaging, L.P. v. St. Luke’s Hosp. and Health Network, 513 F.Supp.2d 411, 417 (E.D.Pa.2007); Niester v. Moore, No. 08–5160, 2009 WL 2179356, at *3 (E.D.Pa. July 22, 2009)).

Restrictions must be imposed on non-party discovery, however, to “protect third parties from harassment, inconvenience, or disclosure of confidential documents.”  F.T.C. v. AMG Servs., Inc., 291 F.R.D. 544, 556 (D. Nev. 2013) (citing Beinin v. Center for Study of Popular Culture, No. 06–02298, 2007 WL 1795693 (N.D. Cal. June 20, 2007) citing Dart Indus. Co., 649 F.2d at 649 (9th Cir. 1980)).   Moreover, discovery is never unbridled; nor it is unlimited. There must be restrictions to protect individuals in their natural privacy.  Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 607 (D. D.C 1969).  Courts have recognized a non-party’s right to privacy in its financial affairs. Hecht v. Pro-Football, Inc., 46 F.R.D. 605, 607 (D.C. 1969); Kalinauskas v. Wong, 151 F.R.D. 363, 365 (D. Nev. 1993) (secrecy of settlement agreement and contractual rights of parties thereunder deserve court protection.).

Confidential information can be protected against disclosure.  One facing a subpoena requiring disclosure of such documentation may seek court assistance in resisting the request.

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.