Served With a Subpoena You’re Not a Party To

The clock is the first problem

Subpoena obligations run on short fuses, and the most valuable protection a non-party has — the right to object — is also the easiest one to waive by inaction. Treat the first day as deadline-driven, not document-driven.

1. Calendar the compliance deadline before anything else.

   Read the document for the date by which production or appearance is due, and dock that date to a real calendar with a named owner. Then back-calculate the earlier dates that actually matter — the objection window and any meet-and-confer runway. Under federal Rule 45, written objections to a documents subpoena are generally due within 14 days of service, or before the compliance date if that is sooner; state analogs vary, so confirm the governing rule. The deadline that controls your rights is almost always earlier than the deadline printed on the face of the subpoena.

2. Identify what you were actually served with.

   Pin down three things: the authority (federal Rule 45 or a state-court analog — they differ on timing, geographic limits, and service), the demand (documents, deposition testimony, or both), and the issuing court and counsel. A subpoena commanding production or appearance far from where your company resides or does business may exceed the geographic limits the rules impose — a defect worth flagging. Confirm service was proper while you are at it; defective service is a real, if rarely dispositive, objection.

3. Treat the subpoena as a preservation trigger.

   Receipt of a subpoena is one of the clearest signals that responsive material must be preserved. Issue or expand a litigation hold over the people and systems likely to hold responsive documents, and suspend any auto-deletion touching them, even though no decision to produce has been made yet. Preserving costs you little; a gap discovered after you have surfaced as a non-party witness costs a great deal. See the litigation hold checklist for scoping custodians and sources.

4. Assess scope, burden, and proportionality.

   Read the demand against what a reasonable production would look like for a non-party. Ask whether it is overbroad on its face, untethered to the claims in the underlying case, or framed in “any and all” terms that would sweep in years of records to answer a narrow question. Non-parties are entitled to protection from undue burden, and proportionality is not only the parties’ argument — courts tend to apply it with particular force when the recipient has no stake in the dispute. Estimate the hours, the systems, and the cost literal compliance would demand; that estimate anchors both your objections and any later cost-shifting request.

5. Serve timely written objections.

   This is the step most often skipped and most often regretted. Serving proper written objections within the window preserves your positions — burden, overbreadth, privilege, relevance, confidentiality — and, under Rule 45, generally means the issuing party must move to compel before you are required to produce. That written-objection mechanism is the procedure for a document or inspection subpoena; a deposition subpoena (or an otherwise improper one) is challenged not by serving objections but by a timely motion to quash or modify, or a motion for a protective order, so confirm which track applies before you rely on the objection window. Miss the window and you can waive objections you would otherwise have won. Objections should be specific rather than boilerplate; a court is far more receptive to a particularized burden showing than to a reflexive “objection to all of it.”

Protecting what is yours

A non-party is not a filing cabinet for someone else’s lawsuit. The material requested may be privileged, may be a trade secret, or may belong to people who have a say before you hand it over.

1. Assert privilege and confidentiality, and consider a protective order.

   Screen for attorney-client privilege, work product, and any sector-specific protections before producing, and log what you withhold. Where the demand reaches confidential business information, a motion for a protective order — or a negotiated order governing how the material is used and who may see it — is often the cleaner path than an outright fight. Confirm the applicable privilege rules against current law in the governing jurisdiction; the contours vary and several are in flux.

2. Pursue cost-shifting.

   You are not the litigant, and you should not silently underwrite the parties’ discovery. Rule 45 directs courts to protect non-parties from significant expense, and a non-party can often seek reimbursement of meaningful production costs — vendor fees, review time, collection of data from legacy systems. Raise cost-shifting early and in writing, ideally as part of the meet-and-confer, rather than absorbing five figures of e-discovery cost and asking later. The assumption that a non-party simply bears its own costs is weaker than parties tend to suggest.

3. Check for third-party notice obligations.

   Before producing, look hard at whether the responsive material contains your own trade secrets, customers’ or vendors’ confidential information, or employee or consumer personal data. Many contracts and several privacy regimes call for notice to — or consent from — the affected party before their information is disclosed in response to a subpoena, and some give them a right to intervene or object. Producing first and notifying later can breach a confidentiality agreement or a statutory duty that has nothing to do with the underlying case.

4. Meet and confer to narrow it.

   Most subpoena disputes resolve faster and cheaper through negotiation than motion practice. Use the conference to narrow custodians, date ranges, and search terms; to extend timing; to confirm a protective order; and to settle who pays. Document the agreement in writing. A reasonable, specific counter-proposal from a non-party is hard for a court to ignore if the issuing party refuses it and forces a motion.