Risks of Using Nonparty Subpoenas to Obtain Discovery
ZVMLaw recently won a motion to quash 10 subpoenas served on various nonparties in a trademark infringement case we’re litigating in federal court. The plaintiff in the case had failed to obtain certain relevant information from our client through more traditional method of discovery (like document requests and interrogatories) and decided to subpoena third parties as an alternate route to getting to the information. Even if the subpoenaed parties did possess the information our opponents sought, the court nevertheless granted our motion to quash on the basis that courts must enforce the duty of each party to take reasonable steps to avoid imposing undue burden or expense on the person or entity subject to the subpoena.
In determining whether a subpoena imposes an “undue burden,” in addition to considering more predictable factors—like whether the request is relevant, sufficiently particular and time limited—courts also give special weight to nonparty status. According to the Robinson v. Morgan Stanley case from the Northern District of Illinois, this is because:
“Although discovery is by definition invasive, parties to a law suit must accept its travails as a natural concomitant of modern civil litigation. Non-parties have a different set of expectations. Accordingly, concern for the unwanted burden thrust upon non-parties is a factor entitled to special weight in evaluating the balance of competing needs.”
Other recent decisions from across the county reveal that courts are loath to allow a party to use a nonparty subpoena to go on a fishing expedition, to obtain production of the same documents that were—or should’ve been—sought from a party, or to turn the nonparty into a de facto expert for one of the parties.
In our case, the court found that the information sought from the subpoenas could’ve been more easily acquired from a party to the case and/or was not sufficiently relevant so as to trouble a non-party to respond to a subpoena. For example, the plaintiff in our case issued a nonparty subpoena to a company that had once employed our client’s former CEO on the basis that he may have brainstormed some of the business strategies at issue in our case while in his previous role at the subpoenaed company. The court rejected our opponent’s rationale, finding that “this ‘plausibility’ is not sufficient to tax a non-litigant to respond to a subpoena seeking documents that Defendants would have in their possession if they existed.”
As our opponents learned the hard way, the case law is increasingly clear that nonparty subpoenas should not be a substitute for traditional discovery or a workaround when a party fails to get the information via more appropriate means. IP litigators (and litigators generally) should bear this in mind and ensure, to the extent possible, that they craft their discovery requests so as to obtain relevant information directly from the parties themselves.