What Should a Non-Party to a Lawsuit Do If Served with a Subpoena Duces Tecum?

{4 minutes to read}

From time to time, individuals and companies will be served with a subpoena requesting the production of documents that may be relevant to a litigation in which that person or company is not a party. The person or party served may have no interest in the outcome of the litigation, no real knowledge of the underlying dispute, and may not have even known that it existed.

What should that subpoenaed person or party do? What are their legal responsibilities?

  • The party cannot simply ignore the subpoena. Assuming that it is properly drawn and was properly served, if the person or company served does not comply, or take the necessary steps to seek to have the subpoena modified or quashed, they could be held in contempt of court and would still be required to produce the requested documents.
  • The party served should contact his lawyer to see what the available options are. There may be grounds to seek the modification or withdrawal of the subpoena, including that the subpoena is overbroad, that complying with it may be overly burdensome, or that responsive documents might be privileged. Where a subpoena is issued by an attorney on behalf of a party to a litigation, and is not returnable in court, the party who received the subpoena is required, first, to request the issuing party to withdraw or modify the subpoena. If the negotiation is unsuccessful, a motion should then be made to quash the subpoena. (CPLR 2304)
  • The CPLR also allows the receiving party to set forth his objections to the subpoena, but where he is withholding documents, he must provide detailed information with respect to each document that is being withheld. That information must include the type of document, the general subject matter of the document, the date of the document, and such other information is as sufficient to identify the document. (CPLR 3122)

Parties in a lawsuit are often cognizant of the time and expense inherent in responding to a subpoena duces tecum, and the fact that it could pose a burden on a non-party. The court can also fix conditions upon which the receiving party is required to comply. For these  reasons, it is often beneficial for the party receiving the subpoena and the party who served it to make reasonable efforts to come to an agreement as to the scope of the subpoena, and the date and method of production, prior to asking for a court to intervene.

However, the first step must be made by the party who received the subpoena. If you are served, don’t just hope the subpoena will go away. If a party serving a subpoena went to the trouble and expense of drafting and serving it, assume he will take you to task for ignoring it: He will likely seek to have you held in contempt and seek a court order compelling the production of the documents. When that happens, you will be required to respond to the party’s motion, guaranteeing that the cost and expense to you caused by the subpoena will increase significantly; you may very well face a less sympathetic party, who served the subpoena, and court, when you, belatedly and in contravention of the rules, seek to have the subpoena modified or quashed altogether; and, unless the subpoena is quashed, you will be required to produce responsive documents – some (if the subpoena is modified) or all of those demanded in the subpoena –  anyway; precisely the position you were in on the day you were served, but before you incurred the added cost and aggravation caused by you having ignored the subpoena or having provided a legally insufficient response.


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