John Maley: Here is how you can navigate third-party discovery

Federal court litigators in Indiana regularly serve third-party discovery and often represent third-parties responding to such requests.

Those same litigators are often doing these same tasks in Indiana state courts, although under different rules. Although similar in many respects, there are significant differences in Rules 34 and 45 of the Federal Rules of Civil Procedure, and Trial Rules 34 and 45.

Rule 34 differences. For starters, in Indiana practice Trial Rule 34(C) is lengthy (496 words and four subparts), while Fed. R. Civ. P. 34(c) is one sentence, providing, “As provided in Rule 45, a nonparty may be compelled to produce documents and tangible things or to permit an inspection.” So to comply with the procedural requirements for third-party discovery, federal court practitioners must follow Rule 45. For third-party discovery in Indiana state court, Rule 34(c) is the primary source, with Trial Rule 45(C) relevant to service of the third-party subpoenas.

When can third-party discovery be served? A major difference in federal and Indiana third-party discovery is when third-party discovery can be served. In Indiana, Trial Rule 34(C)(2) provides, “Neither a request nor subpoena to produce or permit as permitted by this rule shall be served upon a non-party until at least fifteen (15) days after the date on which the party intending to serve such request or subpoena serves a copy of the proposed request and subpoena on all other parties.” This pre-service notice requirement to parties in the lawsuit has been in existence in Indiana for decades, and serves the important purpose of giving parties a reasonable opportunity to confer with serving counsel or seek court intervention for improper or overbroad third-party discovery.

Trial Rule 34(C)(2) does allow exceptions, stating, “Provided, however, that if such request or subpoena relates to a matter set for hearing within such fifteen (15) day period or arises out of a bona fide emergency, such request or subpoena may be served upon a non-party one (1) day after receipt of the proposed request or subpoena by all other parties.”

Counsel can, of course, agree to shorter advance notice time, and can also seek court permission to proceed with service of third-party discovery requests earlier than after a 15-day notice period. This is very common in preliminary injunction matters, for instance.

In federal practice, Rule 45(a)(4) provides that for third-party discovery requests and subpoenas “before it is served on the person to whom it is directed, a notice and a copy of the subpoena must be served on each party.” But the Federal Rule does not provide a time period for such pre-service notice to parties of record. This is unfortunate, as it invites unpredictability in many federal courts.

Some local rules address this in federal practice. The Southern District of Indiana addresses this in its Local Rule 45-1, with a seven-day notice period. Other Districts vary, for instance, with the Northern District of Indiana (like many others) not having a Local Rule 45-1 with a time period, and others varying (e.g., District of Utah requires five days advance notice to parties).

Beyond Rule 45 and Local Rules, Rule 26(d) prohibits any discovery until the 26(f) party conference on discovery. Rule 26(d) states, “A party may not seek discovery from any source before the parties have conferred as required by Rule 26(f), except in a proceeding exempted from initial disclosure under Rule 26(a)(1)(B), or when authorized by these rules, by stipulation, or by court order.” Thus, in fast-track cases either an early 26(f) conference is required (which is simply counsel conferring), or court approval.

Third-Party objections and court action. For the recipient of third-party discovery, the time periods for objection and court action are different. In Indiana practice, Trial Rule 34(C)(3) provides, “The party upon whom the request is served shall serve a written response within a period designated in the request, not less than thirty [30] days after the service thereof or within such shorter or longer time as the court may allow. The response shall state, with respect to each item or category, that inspection and related activities will be permitted as requested, unless it is objected to, including an objection to the requested form or forms for producing electronically stored information, stating in which event the reasons for objection shall be stated.”

In federal practice, the time period is typically shorter. Rule 45(d)(2)(B) provides that any “objection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.” So if the document and subpoena calls, for instance, for production within, say, seven days, that is the deadline for objections. If the time period specified is longer than 14 days, say 21 days, objections are due by the Rule within 14 days (the shorter of the two periods).

Motions for protective order to quash must be timely, with Rule 45(d)(3) stating, “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.”

Pursuant to Rule 26(c)(1), the recipient of third-party discovery can seek a protective order, but must meet and confer with serving counsel first. The Rule reads, “A party or any person from whom discovery is sought may move for a protective order in the court where the action is pending—or as an alternative on matters relating to a deposition, in the court for the district where the deposition will be taken. The motion must include a certification that the movant has in good faith conferred or attempted to confer with other affected parties in an effort to resolve the dispute without court action.”

A final caution. It should go without saying that third-party discovery requests and subpoenas are part of the litigation process, and cannot be used if there is no pending lawsuit. This is reaffirmed by In re Anonymous, 896 N.E.2d 916, 917 (Ind. 2008), in which an attorney was publicly reprimanded in a disciplinary action for serving a third person a subpoena duces tecum (on three separate occasions) to appear for examination under oath and to produce documents.•

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John Maley – [email protected] – is a partner with Barnes & Thornburg LLP, practicing federal and state litigation, labor and employment, and appeals. He clerked for Judge Larry McKinney from 1988-90, serves as chair of the Local Rules Advisory Committee, S.D. Indiana, and is a member of the Local Rules Advisory Committee, N.D. of Indiana.