How to Challenge or Quash a Third-Party Subpoena in California
November 2, 2020
During the discovery phase of litigation, parties to a lawsuit can obtain evidence from one another through written requests and oral depositions. Sometimes, necessary information or evidence is in the possession of an individual or organization that is not a party to the lawsuit. Chapter 6 of California’s Civil Discovery Act (CDA) establishes rules and procedures for “nonparty discovery.”
A litigant can only compel a third party’s compliance with discovery requests by issuing a subpoena. If a third party who has received a subpoena wishes to challenge its enforceability or validity, they have several options. They can object to the subpoena in writing, after which the party that issued the subpoena must ask the court to rule on whether or not the subpoena can be enforced. The third party can also go to court themselves by filing a motion for a protective order or a motion to quash the subpoena.
What Is a Third-Party Subpoena?
A third-party subpoena is any subpoena issued in the course of a lawsuit to someone who is not a plaintiff, defendant, or intervenor in the lawsuit. This could include, to name only two examples, eyewitnesses to one or more events giving rise to a lawsuit, or custodians of records for organizations. The CDA allows parties to obtain evidence from third parties by three methods:
- Oral deposition, in which a witness provides sworn testimony on the record;
- Written deposition, in which a witness provides written answers under penalty of perjury; and
- Production of business records and other materials.
A third-party subpoena in California can direct the recipient to appear in person to provide testimony, to produce documents for copying, or to do both.
Who May Challenge a Third-Party Subpoena?
California allows multiple people to challenge a third-party subpoena. The person or organization served with the subpoena may object to all or part of it, or they may file a motion for a protective order or to quash the subpoena in the court where the lawsuit is pending. A party to the lawsuit may also file a motion to quash. Under § 1987.1(b) of the California Code of Civil Procedure, other individuals may file motions to quash if their consumer records, employment records, or “personally identifying information” are contained in the documents sought by the subpoena.
Challenges to a Third-Party Subpoena in California
Third parties who have been served with a subpoena, or who otherwise have standing to challenge a third-party subpoena under California law, may do so on a variety of legal or equitable grounds.
Lack of Subpoena Jurisdiction
A subpoena issued in a California lawsuit is only binding on California residents. This includes individuals who live in California and businesses or other organizations located in the state. A subpoena served on a non-resident is not enforceable under California law.
State law limits how far an individual may be compelled to travel for an in-person deposition or court testimony. An oral deposition of an individual must take place within 75 miles of that person’s residence. If the individual lives within 150 miles of the county where the lawsuit is filed, the deposition may be held in that county. A party serving a subpoena for a deposition must pay a witness fee to the person being deposed.
Improper Form or Insufficient Service
The CDA sets requirements for the form of a subpoena, and for the manner in which the subpoena must be served. The specific requirements vary depending on whether the subpoena is addressed to an individual or an organization, and whether it seeks in-person testimony or production of documents.
Protective Order Already in Place
A court may, on the motion of a party to a lawsuit or certain other interested parties, issue a protective order that either prohibits the production of certain evidence, or requires that certain evidence be kept sealed. Any third-party subpoena covered by an existing protective order may not be enforced.
A subpoena cannot compel production of information or communications covered by a legal privilege, such as the attorney-client privilege.
Confidential or Proprietary Information
Information that constitutes a trade secret, or that is otherwise protected by laws governing confidential or proprietary information, might not be subject to production or disclosure with a subpoena. A third party may request that the party issuing the subpoena sign a non-disclosure agreement before they produce the information.
Vague, Ambiguous, or Overly Broad Requests
A third-party subpoena requesting production of business records or other documents must describe the documents or information sought with a reasonable amount of precision. Parties to a lawsuit cannot use third-party subpoenas to conduct “fishing expeditions” for evidence.
A third-party subpoena cannot subject someone to an unreasonable burden or expense.
Insufficient Time to Respond
A third-party subpoena must give the recipient a reasonable amount of time to locate documents and other materials, or to arrange for attendance at an in-person deposition.
Challenging a Third-Party Subpoena in California
California law gives recipients of third-party subpoenas and other interested parties several options for challenging a subpoena.
Serving Written Objections
A third party that has received a subpoena for production of documents may respond with written objections, which must state the legal basis for objecting to each request. Ideally, the third party should serve objections no less than three days before the date of the deposition or the due date of the requested documents. They may object, however, up to the due date itself if they personally serve the objections on the party issuing the subpoena. Once they have served objections, the burden falls on the party that served the subpoena to file a motion to compel with the court.
Moving for a Protective Order
The CDA allows courts to issue protective orders that bar or limit the discovery of certain evidence, upon the motion of a party called to produce that evidence. A party or third party seeking a protective order must demonstrate that they made a good-faith effort to resolve the dispute with the requesting party.
Quashing a Third-Party Subpoena
A third party that has been summoned for an oral deposition can file a motion to quash the deposition. A third party that could be affected by the production of documents, as described above, can move to quash a subpoena for production of business records. Either motion typically requires a declaration that the moving party attempted to resolve the matter informally first. A motion to quash can ask the court to quash the subpoena entirely, to limit its scope, or to modify its requests.
The California Supreme Court in Facebook, Inc. v. The Superior Court of San Diego County, recently ruled on a dispute over a third-party subpoena for business records served by a defendant in a criminal case. The court’s decision identifies a seven-part test for motions to quash third-party subpoenas, which includes many of the grounds discussed above. While the case specifically involved a criminal proceeding, it could affect future civil cases in this state.
If you have been served with a third-party subpoena and need help challenging or responding to it, please contact Bona Law or call us at 858-964-4589.