How should one properly respond to a Nevada subpoena? As is so often the case in the law, the answer is “it depends.” Let’s first discuss the different types of subpoenas and then decide on the best way to respond to them.
The post assumes that you are not a party to the litigation and that the subpoena is not for trial testimony. If that is the case, the subpoena is served for the purpose of either compelling your attendance to testify or for gathering information one of the parties thinks they need to prove their case, and is called a discovery subpoena. A discovery subpoena may require the receiving party to turn over documents, allow for the inspection of physical premises, and/or provide testimony. Nevada Rules of Civil Procedure (“NRCP”), NRCP 45(b)(1), NRCP 30(b)(1).
Types of Discovery Subpoenas
A subpoena requiring the turnover of documents is called a “subpoena duces tecum”, which is a Latin phrase meaning “under penalty you shall bring with you”. It is a tool allowed under NRCP 45(a)(1)(C). If served, you are required to produce the requested documents as they are kept in the normal and regular course of your business, or organized and labeled to correspond with the written request. NRCP 45(d)(1).
A non-party witness served by subpoena must appear and provide testimony at the place, date, and time provided for in the subpoena and may sit for up to seven hours of questioning. NRCP 45(a)(1)(C); NRCP 30(d)(1). If the party to litigation desires to obtain information from a corporation, partership, association, or governmental agency, the subpoena must “describe with reasonable particularity the matters for which examination is requested”. NRCP 30(b)(6). The organization must then provide a spokesperson who is qualified to and who will provide testimony which binds the organization on the topics in the notice.
A subpoena must provide you with “reasonable time for compliance” with its requests. NRCP 45(c)(3)(A)(1). The most common practice in Nevada is to give a witness or entity 15 days to comply with a subpoena. Of course, if you are required to provide thousands of emails, 15 days will not usually be considered “reasonable.”
Responding to the Discovery Subpoena
Your choices when served with a discovery subpoena, regardless of the type, are to:
- Work with the party who issued the subpoena to resolve any scheduling problems or objections you may have to timing or scope of the subpoena;
- Comply with the subpoena;
- Serve written objections (to subpoena duces tecum) as allowed under NRCP 45(c)(2)(B);
- Serve written objections based on a legal privilege against having to divulge certain information under NRCP 45(d)(2);
- File a motion to quash the subpoena under NRCP 45(c)(3)(A);
- File a motion to modify the subpoena under NRCP 45(c)(3)(A); or
- File a motion for a protective order under NRCP 26(c).
Because each of the actions for court assistance require that you “meet and confer” with the issuing party to try to find an amiable solution before filing a motion, you should always start with number 1 above if you are not simply going to comply with the subpoena.
Objecting to the Discovery Subpoena
If you determine that the subpoena is objectionable, you must serve the issuing party with written objections within 14 days of service of the subpoena if it seeks written materials (or before the response is required if the subpoena gives less than 14 days to comply). NRCP 45(c)(2)(B). If the subpoena is for a deposition, the objecting party must file a motion to quash or for protective order. If a written objection is made, the issuing party may not obtain the information sought without a court order. One may object:
- the subpoena imposes an undue burden or expense upon the witness without cost-shifting arrangements. NRCP 26(b)(4)(c) and NRCP 45(c)(3)(A)(iv);
- failure to pay a witness appearance fee. NRCP 45(b);
- the subpoena was improperly seved. NRCP45(b);
- the subpoena does not provide a reasonable amount of time within which to respond. NRCP 45(c)(3)(A)(i);
- the subpoena requires the disclosure of a trade secret or confidential materials, or privileged or otherwise protected materials. NRCP 45(c)(3);
- If you claim that documents are protected because of a legal privilege, you must include a log providing “a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.” NRCP 45(d)(2); and
- the witness has been required to travel more than 100 miles. NRCP 45(c)(3)(A)(ii).