Non-Party Subpoenas Under Rule 45: Getting It Right

Non-party subpoenas are one of the most powerful tools in federal litigation, and one of the most commonly botched. You’re reaching outside the case to compel someone who owes you nothing, before a court that may not know your case at all. Getting the mechanics wrong can mean a defective subpoena, a successful motion to quash, or sanctions. Here’s how to do it right.

Get the Paperwork Right Before You Serve Anything

Rule 45’s formal requirements aren’t suggestions. The rule is specific:

Every subpoena must: (i) state the court from which it issued; (ii) state the title of the action and its civil-action number; (iii) command each person to whom it is directed to do the following at a specified time and place: attend and testify; produce designated documents, electronically stored information, or tangible things in that person’s possession, custody, or control; or permit the inspection of premises; and (iv) set out the text of Rule 45(d) and (e).

That last requirement trips people up. You have to include the full text of subsections (d) and (e) in the subpoena itself. Courts have refused to enforce subpoenas missing this. Print it, attach it, make it part of the document.

Also: the subpoena must issue from the court where the action is pending, but compliance is measured from where the non-party lives or works. That geographic distinction matters a lot, and it’s the source of the two-court problem addressed below.

Notice to other parties is also mandatory before you serve a document subpoena. Rule 45(a)(4) requires you to serve all parties with notice and a copy of the subpoena before the non-party gets it. Skip this step and opposing counsel has a legitimate basis to object to the production and potentially get it thrown out. This isn’t a technical courtesy; it exists so parties can move to quash before documents disappear into your files.

Drafting Requests That Hold Up

Document subpoenas live or die by their definitions and requests. You’re not bound by the same proportionality meet-and-confer process you have under Rule 26, but that doesn’t mean you can go fishing without limits. Courts read overbreadth into non-party subpoenas quickly because, unlike a party, the recipient has no stake in the case and gets no offsetting benefit from discovery.

Write requests that are tied to specific issues in the case. “All documents relating to any transaction between [Non-Party] and [Defendant] from 2018 to present” is a lot more defensible than “all documents concerning [Defendant].” Specificity also helps you argue necessity when opposing counsel or the non-party objects.

For ESI, take advantage of Rule 45(a)(1)(C) and specify the format you want. If you need metadata, say so. If you need native files rather than PDFs, say that too. If you don’t specify, the responding party gets to produce in whatever form the information is “ordinarily maintained or in a reasonably usable form or forms.” You may end up with a stack of paper-equivalent TIFFs when you needed searchable files with metadata intact.

The 100-Mile Rule Is Not Flexible

A subpoena commanding attendance at a deposition or trial can only require appearance within 100 miles of where the person resides, is employed, or regularly transacts business. The rule makes two limited exceptions: parties and their officers can be commanded to attend trial anywhere within the state where they reside, are employed, or regularly transact business; and non-party witnesses commanded to attend trial (but not a deposition) can also be compelled anywhere within that same state, provided they would not incur substantial expense. For everyone else in deposition practice — the vast majority of non-party witnesses — 100 miles is the hard boundary.

Attorneys regularly serve deposition subpoenas requiring a non-party to appear at the lawyer’s home office, which is convenient for the lawyer and potentially invalid. If your witness is in Phoenix and you’re litigating in New York, you need to schedule the deposition in Phoenix or somewhere within 100 miles of where that person actually works or lives. Violating the geographical limits is one of the mandatory grounds for quashing under Rule 45(d)(3)(A)(ii), meaning the court has no discretion once the violation is established.

Responding to a Subpoena: Quash, Modify, or Object?

These three options aren’t interchangeable, and choosing the wrong one costs you time.

A written objection under Rule 45(d)(2)(B) is the fastest move if you represent the non-party (or your client received a subpoena as a non-party). It must be served before the earlier of the compliance deadline or 14 days after service. Filing the objection doesn’t automatically relieve the non-party of compliance obligations, but it shifts the burden to the serving party to move to compel.

A motion to quash or modify is more appropriate when you’re attacking the subpoena on structural grounds: it’s overbroad, it demands privileged material, it violates the geographic limits, or it doesn’t allow reasonable time. The rule draws a clear line between situations where quashing is mandatory and situations where it’s discretionary:

On timely motion, the court for the district where compliance is required must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (ii) requires a person to comply beyond the geographical limits specified in Rule 45(c); (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.

The undue burden argument under (iv) is where most fights happen. Courts weigh relevance to the claims, the requesting party’s need, the breadth of the request, and the burden on the non-party. In the Ninth Circuit and others, courts have been willing to shift costs to the requesting party when compliance would impose significant expense on a non-party. Proportionality principles in third-party discovery are well-established, and cost-shifting arguments are strongest when you can demonstrate that the requesting party’s need is outweighed by the burden imposed on a non-party who has no stake in the litigation.

The Two-Court Problem

Here’s where practitioners regularly get confused. Motions to quash, modify, or compel must be filed in the court where compliance is required, which may be a completely different district from the court where the case is pending. Your case is in Delaware but the non-party is in Colorado; the motion goes to Colorado’s federal district court.

Rule 45(f) allows the compliance court to transfer the motion to the issuing court if the non-party consents — in which case no further showing is required — or if the court finds exceptional circumstances. Exceptional circumstances are a narrow standard, and the burden is on the party seeking transfer to show them. The Advisory Committee Notes identify the clearest example: where the issuing court has already ruled on the same issues presented by the motion, or the same issues are likely to arise in discovery in many districts. Don’t assume you can get the motion heard by the judge who knows your case; absent the non-party’s consent, transfers are the exception, not the rule.

Privilege Claims by Non-Parties

If you’re representing a non-party responding to a subpoena and they have privileged material implicated by the requests, the obligation is the same as any other discovery context: expressly assert the claim and provide enough description to allow the parties to assess it, without revealing the privileged information itself. A blanket “we object on privilege grounds” attached to a non-production is not a proper privilege log and won’t hold up on a motion to compel.

One more thing: subpoena non-compliance carries real consequences. A non-party who ignores a properly served subpoena without adequate excuse can be held in contempt by the compliance court. That’s not a paper threat. In complex commercial cases, courts have issued contempt orders against corporate non-parties that failed to respond, with fee awards attached.