Court Weighs The Burden Of Complying With A Third-Party Subpoena Under FRCP 45
In Andra Group, LP v. JDA Software Group, Inc., No. 3:15-mc-11-K-BN (N.D. Tex. April 13, 2015), Defendant subpoenaed a third-party witness, seeking a wide array of documents and ESI responsive to 17 different categories, each with sub-parts. The witness partially complied and produced an excess of 11,500 documents (over 21,000 pages in total), some in hard copy and others in native file format and PDF format.
The witness filed a Motion to Quash the subpoena, arguing that fully complying with the rest of the subpoena placed an undue burden on an otherwise cooperative third-party witness in violation of FRCP 45.
In particular, the witness argued against producing:
- Any and all emails regarding a certain project without limitation as to custodians or date ranges; and
- Electronic copies of documents already produced.
Defendant objected to the motion to quash, arguing that the court should order the third-party witness to comply in full because the witness was not an “ordinary” third-party witness but had a critical role in the principle issue in the case.
The court saw both sides of the issue, reasoning that the nature and importance of the litigation combined with the need for the documents weighed more heavily in favor of Defendant but also noting that FRCP 45(d) provides protections against overly burdensome and expensive third-party discovery. The court also observed that Defendant had sought some of the same documents and data from Plaintiff, and that Defendant had not yet demonstrated that Plaintiff was unwilling or unable to produce those documents.
Accordingly, the court modified the subpoena in part, requiring the witness to only produce documents not already produced by Plaintiff and excluding from the subpoena any communications between the third-party and Plaintiff or documents prepared by Plaintiff. Finally, the court ordered the witness to reproduce the hard copy documents in electronic format but ordered Defendant to bear the cost of doing so.