Non-party discovery in Texas: What should you do if you receive a discovery subpoena?

Andrew Pearce, Robert Arthur

July 24, 2017

Subpoena? Hard to Spell, Harder to Respond?

You may not be a party to a lawsuit, but you can still become involved in litigation by receiving a subpoena. A subpoena is a discovery tool used in civil litigation to compel a person or entity that is not a party to a lawsuit to provide relevant documents and testimony. There are generally three forms of discovery a party to a lawsuit can compel from a non-party:

1. Oral deposition;

2. Deposition on written questions; and

3. Production of documents or tangible things.

The immediate desire for someone receiving a subpoena may be to ignore it, but a subpoena serves as notice that you may possess documents that are relevant to an ongoing dispute. Ignoring a subpoena does not mean it will go away. Instead, follow these tips:

Step 1: Preserve Relevant Information

A person or company should first ensure any relevant documents are properly preserved. If you have regular procedures in place for purging information, suspend them for the time being. You should also send a preservation letter or email to employees who may have relevant documents and communications. Both hard copies and electronically stored information (ESI) must be preserved. Adequate preservation of ESI requires more than simply ensuring the information is not destroyed. You must also take steps to ensure data is not lost due to routine operation of the data source.

Step 2: Act Sooner Rather Than Later

You have a limited time to respond to a discovery subpoena. A subpoena for an oral deposition will state the date and time of the deposition. The notice and subpoena must be served a reasonable time before the deposition is taken. A subpoena for a deposition on written questions must be served at least 20 days before the deposition is taken.

To serve a subpoena for production of documents, the requesting party must first provide at least 10 days notice that the subpoena will be served. The notice must include the name of the party from whom production is sought, a reasonable time and place for production, and list the items to be produced. When the 10-day notice period expires, the requesting party can serve the subpoena for production of documents and must provide a reasonable time for you to respond.

Step 3: Know Your Rights

You have the right to object to a subpoena and it is often advisable to do so. However, that is not always the best strategy. Instead, you may choose to simply respond to the subpoena. This may be the most cost-effective response, and is a good idea if there is little or no possibility you will be exposed to litigation in the process.

Of course, it is often advisable to assert objections to a subpoena. To object to a subpoena for an oral deposition or deposition on written questions, the responding party should file a motion for protection or motion to quash

There are many grounds for objecting to a subpoena for production of documents, including objections to the time and place of the response. You can also object to ensure confidential and trade secret information is protected, to protect against undue burden or expense, or any other objection that could be asserted by a party receiving a discovery request including lack of relevance, overbreadth, vagueness, and ambiguity. You can accomplish the same objective by filing a motion for protection or motion to quash the subpoena.

Objecting, filing a motion for protection, and filing a motion to quash does not relieve you of the burden of responding to the subpoena, it only relieves you of the burden of responding to the part of the subpoena objected to or from which protection is sought. It does, however, shift the burden to the requesting party to obtain an order compelling you to respond to the subpoena. On the other hand, failure to timely object to a discovery subpoena generally results in waiver of the objection.

Step 4: Consider Hiring an Attorney

Finally, you should consider whether to hire an attorney to handle communications with the requesting party, navigate deadlines, and determine whether and how to respond to the subpoena. This is especially important if the subpoena seeks production of confidential or privileged information, the request is invasive, or a response could lead to exposure in the lawsuit.

If you receive a discovery subpoena, it does not mean you have been sued or that you are even suspected of any wrongdoing. It simply means you may be in possession of documents or have knowledge of facts relevant to an ongoing lawsuit. A subpoena is, however, a discovery request that is part of a dispute and you should be cautious and consider your exposure before responding.

Most importantly, it is important that you understand your obligations and your options in responding to a subpoena to limit the burden, expense, and potential exposure.