What to do if a Non-Party fails to respond to a Subpoena?
(This is not legal advice, just my opinion on the topic)
In my litigation practice, I’ve noticed — and its happened three different times now — is non-parties are non-responsive to my subpoena requests. It’s very frustrating and I’ve decided it’s time to take action!
After a little research, I learned that not responding to a subpoena could yield a “Contempt of the Court” sanction. Contempt is a term used to describe actions that are disobedient, disruptive to the court, or disrespectful to the judge. I’ve heard from more seasoned attorneys that it’s not a commonplace remedy, and it can annoy the judge to even request this course of action. Nonetheless, once a person is found guilty of contempt, they can face fines and even jail time. The incarceration usually lasts as long as the contempt continues, for example, until a fine is paid or until a party complies with a particular court order.
With respect to the third party subpoena, the rule states, “Contempt. The court for the district where compliance is required — and also, after a motion is transferred, the issuing court — may hold in contempt a person who, having been served, fails without adequate excuse to obey to the subpoena or an order related to it.” See Fed. R. Civ. P. 45(g).
So my next question — how do I enforce this Rule 45? It turns out I can do so though a motion to compel or a motion for contempt sanctions. I’ve drafted many a motion to compel as a law clerk at my previous firm, so this is the more familiar path I plan to walk.
I believe I can use Rule 37 (a) against the non-party for failing to respond to the subpoena because in Section (a)(1) it states:
In General. On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.
See Fed. R. Civ. P. 37(a)
The non-party subpoena recipient would be an “affected person” here – and I have attempted (repeatedly) to accomplish that good-faith conference, with no response. The high-stakes poker part of this motion comes from the fee implications propounded by Rule 37(5), which states:
(5) Payment of Expenses; Protective Orders.
(A) If the Motion Is Granted (or Disclosure or Discovery Is Provided After Filing). If the motion is granted—or if the disclosure or requested discovery is provided after the motion was filed—the court must, after giving an opportunity to be heard, require the party or deponent whose conduct necessitated the motion, the party or attorney advising that conduct, or both to pay the movant's reasonable expenses incurred in making the motion, including attorney's fees. But the court must not order this payment if:
(i) the movant filed the motion before attempting in good faith to obtain the disclosure or discovery without court action;
(ii) the opposing party's nondisclosure, response, or objection was substantially justified; or
(iii) other circumstances make an award of expenses unjust.
(B) If the Motion Is Denied. If the motion is denied, the court may issue any protective order authorized under Rule 26(c) and must, after giving an opportunity to be heard, require the movant, the attorney filing the motion, or both to pay the party or deponent who opposed the motion its reasonable expenses incurred in opposing the motion, including attorney's fees. But the court must not order this payment if the motion was substantially justified or other circumstances make an award of expenses unjust.
So If I win this Motion, all the research and time spent drafting and preparing it is billable to the non-party who failed to respond. I also know that when attorneys win their fees from other parties, they often charge more per hour than what they charge their clients, and I drafted that right into all of my Engagement Letters. If I lose, however, the company who’s ignoring my subpoena, emails, and phone calls will be able to do the same against me. Even though I believe I am right, you never know for sure what a judge will ultimately decide, and the only way to find out requires filing a motion.