The Use of Rule 45 Subpoenas To Discover Information Concerning Experts or Underlying Expert Opinions

The 1991 amendments to Rule 45 created one of the most valuable litigation tools available to counsel nationwide discovery from nonparties. Without approval or assistance from any court, lawyers can subpoena testimony and documents from nonparties throughout the country without jurisdiction limitations, merely by signing a subpoena complying with the requirements of FRCP 45. This simplified procedure for discovery from nonparties is not available in South Dakota state court actions. The amendments, including the required forms and procedure under Rule 45, are extensively discussed in D. Siegel, Federal Subpoena Practice Under the New Rule 45 of the Federal Rules of Civil Procedure, 139 F.R.D. 197 (1992) and in Prof. Siegel’s Practice Commentary following the USCA text of Rule 45.

Rights of Nonparties

The 1991 amendment imposes several responsibilities on subpoenaing parties and their attorneys and grants several protections to nonparties subject to subpoenas. Many were inferred by courts before the 1991 amendment. Covey Oil Co. vs. Continental Oil Co., 340 F.2d 993 (10th Cir. 1965); Bowers vs. Buchanan, 110 F.R.D. 405 (S.D.W.V. 1986); Deal vs. Lutheran Hospitals & Homes, 127 F.R.D. 166 (D.Alaska 1989); Wright vs. Jeep Corp., 547 F. Supp. 871 (D.Mich. 1982); U.S. vs. Columbia Broadcasting System, Inc., 666 F.2d 364 (9th Cir. 1982); Pollitt vs. Mobay Chemical Corp., 95 F.R.D. 101 (D.Ohio 1982).

The views expressed in many of these decisions have been incorporated in the new Rule 45:

• Subpoenaing parties and attorneys must take reasonably steps to avoid undue burden or expense and can be liable for compensatory damages and attorney’s fees for proceeding otherwise.
• Where production of documents or inspection of property is all that is sought, a nonparty need not personally appear unless the subpoena says so. The party may simply produce the documents or permit the inspection.
• If a nonparty objects to the subpoena, the nonparty may simply give written notice of the objection within the specified time, and the nonparty discovery may not proceed without an order of the Court in whose name the subpoena was issued.
• If a subpoenaed nonparty objects, the issuing Court must protect the nonparty from significant expense.
• The nonparty can obtain a Court order quashing or modifying the subpoena if the required time frame is unreasonable, it requires travel of more than 100 miles from the nonpartyÕs location, requires disclosure of protected material or subjects the nonparty to an undue burden.
• As a practical matter, discovery concerning trade secrets, research, confidential information, an unretained expertÕs opinion or information concerning studies not litigation-specific are not going to be discoverable unless the subpoenaing party shows a substantial need that cannot be otherwise satisfied without undue hardship, and then only upon payment of reasonable compensation.
• A nonparty who must incur substantial expense to travel more than 100 miles in response to a trial subpoena probably will be reasonably compensated.

Nonparty Duties

A nonparty served with a document subpoena is expected to respond according to standards similar to those imposed on a party producing documents. Failure to comply with a subpoena is punishable by contempt. Interestingly, however, a nonparty may simply ignore a subpoena which requires attendance or production more than 100 miles from the nonparty's location.

Issues and Strategies In Expert Discovery

In many instances effective impeachment or support of an expert opinion can be enhanced by discovery of information outside that furnished under Rule 26(a)(2) or 26A(b)(4). These might include:

• Tax returns of the expert to show extent or sources of income earned from litigation
• Communications with counsel in other similar cases
• Communications with other experts with other sources which may be pertinent to the expert’s testimony
• Unpublished writings of the expert
• Underlying surveys, data or compilations relied on by the expert
• Textbooks or other publications not generally available
• Expert reports provided in other cases and disclosed under Rule 26
• Photographs, parts, components, records, computer programs and materials, etc. in the custody of other nonparties.

Forum Shopping

Rule 45 does appear to permit some limited forum shopping by both parties and nonparties. For instance, the 100-mile extra-territorial service rule in 45(b)(2) creates some interesting possibilities. Under FRCP 45(a)(2), the subpoena must be issued in the name of the Court where the deposition and document production is to take place. If the nonparty is located within 100 miles of a state boundary, subpoenaing counsel may determine the forum by simply specifying the place of the deposition either where the nonparty is located or in an adjoining jurisdiction within 100 miles of the nonparty’s location.

This difference has some importance. If there is an objection or dispute over the subpoena, the issue is resolved by the Court issuing the subpoena, not the Court where the litigation is pending. See FRCP 45(c)(3); Kupritz vs. Savannah College of Art & Design, 155 F.R.D. 84 (E.D.Pa. 1994). Even prior to the 1991 amendments, the District Court in which the litigation is pending did not have jurisdiction to hear a Rule 45 dispute over a subpoena issued in a different Equipment Corp., 949 F.2d 228 (8th Cir. 1991).

There may be legitimate reasons for requiring a deposition or production in one place or another. But the subpoenaing lawyer should learn in advance which Court will be more sympathetic to the subpoena. This possibility of forum selection by the subpoenaing party is intriguing because all but three states (Washington, Oregon and California) are within 100 miles of a different federal circuit.

Presumably a party’s forum selection transparently designed to disadvantage or burden a subpoenaed nonparty can fail to satisfy the requirements of 45(c)(1), even though the 100-mile limitation has been satisfied by the subpoenaing party. Nevertheless, where legitimate alternatives for the location of subpoena compliance are in different states or in different circuits, the subpoenaing lawyer may be able to choose the district likely to be the most sympathetic to the subpoena.

Procedure for Objections

The standing of opposing litigants to object or seek a limiting order under FRCP 45 is the subject of some debate. Compare Smith vs. Midland Brake, Inc., 162 F.R.D. 683 (D.Kan. 1995); with Broadcort Capital Corp. vs. Flagler Securities, Inc., 149 F.R.D. 626 (D.Colo. 1993).

The relationship between FRCP 26(c) and 45(c)(3) is not at all clear:

• Rule 26(c) gives a nonparty the right to seek a protective order and thus overlaps with similar protections afforded under Rule 45. Under Rule 26(c) the Court where the action is pending hears all such disputes, except those related to a nonparty deposition. Furthermore, Rule 26 gives opposing litigants some standing to move for a protective order.
• The text of Rule 45(c) does not explicitly grant litigants the right to seek protective orders under that Rule.
• The inconsistent texts of FRCP 26(c) and 45(c) may permit a litigant to seek a protective order to prevent a subpoenaed document production by a nonparty in another state. Where duplicate motions have been filed in the forum court and the subpoenaing court, this overlap may permit transfer of one of the motions to the other court.

The subpoenaed nonparty has an interest in protecting the confidentiality of research or information, its value as intellectual property, and the time and inconvenience it takes to respond to the discovery request. Rule 45(c) strikes a balance by requiring that the subpoenaing litigant prove a substantial need that must be satisfied to prevent undue hardship and by adequately compensating the subpoenaed nonparty. The new ease with which such subpoenas can be issued, however, will certainly increase the frequency of such debates.

Conclusion

FRCP 26(b)(4)(A) formerly contained an itemization of information that could be sought by interrogatory about opposing experts. That itemization of subjects, and any limitation that may have been implied from it was amended out of Rule 26 in 1993. This amendment, together with the simplified nonparty subpoena process should expand the availability to counsel of materials useful for impeachment (and perhaps support) of expert opinions. This expanded freedom is not unfettered and will be circumscribed in a particular case by good judgment, expense and timing considerations and court order.

--Steven W. Sanford
December, 1996