Standing to object to third party subpoena

By: Ashley Nelson

When responding to a third-party subpoena to produce documents issued from a federal court pursuant to Federal Rule of Civil Procedure 45, it is important to fully understand the deadlines for objections, protective motions, and responses, to avoid any potential traps that can have adverse consequences. Generally, under the rule, the responding party has three options: (1) serve written objections on the issuer of the subpoena; (2) file a motion for protection with the court; or (3) file a motion to quash the subpoena. A common misconception upon reading a standard third-party subpoena is that all responses, including objections and other motions, are due at the date of compliance; but, this is not the case and can severely limit your responsive options to challenge the subpoena.

While each of the three options to challenge the subpoena has its benefits and drawbacks, a strategic move often leads the responding party to first challenge the subpoena by simply serving the issuing party with written objections. Choosing to serve written objections to challenge a third-party subpoena has many benefits, including:

1. The objections simply must be written and served on the issuing party, as opposed to filing with the court, which is required for protective motions or motions to quash.
   
2. Serving written objections on the issuing party shifts the burden back to the issuing party and suspends the obligations of the responding party until the issuing party files a motion to compel with the court. On the other hand, the burden remains on the responding party if it chooses to file a protective motion or a motion to quash.
   
3. Serving the objections timely, before filing a motion with the court, can open up the lines of communication between the responding party and the issuing party to potentially resolve the issues outside of court and avoid any costly court filings or hearings. The responding party is not a party to the case in the first place and likely has no interest in getting heavily involved in the ongoing litigation.
   
4. Rule 45 has no mandated format for objections, but local court rules should be consulted before serving the objections.

While serving written objections is the most cost-efficient way to challenge a subpoena duces tecum, the option often can be overlooked or waived because of the misconception that the objections are due on the date of compliance with the subpoena. However, the rule it is clear that the deadline for objections can be, and often is, earlier than the date of compliance: “[t]he objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” Fed. R. Civ. P. 45(d)(2)(B) (emphasis added).

A careful reading of this rule is crucial because the deadline to serve objections typically runs from the date of service (i.e., within 14 days), rather than the date of compliance. The issuing party frequently selects a date of compliance of 30 days or more from the date of service to avoid the subpoena being quashed and modified on grounds it causes the non-party the undue burden of a quick compliance date. Importantly, if the earlier of the two dates passes (the date of compliance or 14 days after service of the subpoena), the objections are waived, and they are no longer an option to challenge the subpoena absent exceptional circumstances. See Andra Group, LP v. JDA Software Group, Inc., 312 F.R.D. 444, 448-49 (N.D. Tex. 2015).

In conclusion, if served with a third-party subpoena duces tecum from a federal court, it is important to first determine the deadlines for objections versus other types of responses to ensure the responding party does not limit its responsive options and miss the deadline to serve written objections on the issuing party.