Legal Line: “I’m not in a Lawsuit, But Somebody Wants to See My Documents”
May 16, 2011

Subpoenas and Non-Party Requests for Production

Even if you are a small business with a handful of clients or employees, it is possible you may open your mail one day and find legal papers stating you are required to turn over documents or other “tangible things”, such as a computer’s hard drive, photographs, or even your property, to an attorney. These papers may seem strange to you in large part because they may be requested as part of a lawsuit in which neither you nor your business are involved.

These types of papers will usually be called a Non-Party Request For Production and/or a Subpoena Duces Tecum (Latin for “bring with you under penalty of law”). You may receive both asking for the same thing(s). The reference to “Non-Party” is just that: It is directed to you, who are not a party to a lawsuit that is currently pending. These requests should include a caption on the first page stating the names of the parties, the court in which the lawsuit is pending, and a cause number identifying the lawsuit.

Do you have to provide the documents or tangible things that are requested? In most instances, the answer will be yes, but there may be issues to address before you do so. For example, a bank may not be eager to turn over detailed records for one of its account holders to anyone and without any protection or agreement from the account holder. Most businesses would not voluntarily turn over their customer list to anyone who requests with some official-looking papers. If you are asked for payroll records for a current employee, you may have some concern over turning over this type of information.

Indiana Rule of Trial Procedure 34(C) addresses requests for information from non-parties to a lawsuit and sets out certain rules that must be followed. One requirement in almost all situations is that before sending it to the person/business holding the information, the party wanting the information must provide at least 15 days’ notice to the opposing party. The purpose of this waiting period is to give the other party time to object. Therefore, if your employee is a party to a lawsuit and the other side wants your employment file, the employee’s attorney will already have had an opportunity to object to the request. You may consider contacting the attorney who did not issue the request to see if they have already objected to the request.

The rule also sets out certain rights that you have. For example, the request you receive must inform you that you are entitled to security from any damages you may face in providing the requested information. It should also inform you that you may propose different terms for complying (such as you will provide the dates your business serviced a particular location, but not the price you charged). Finally, it should expressly state you have the right to object to the request.

You may refuse to provide the information and request the court cancel or “quash” the request. In order to do so, you would need to file a Motion to Quash with the court and state the reasons you do not wish to provide the information. Many times, the information is provided, but only after a protective order is entered, whereby the parties to the lawsuit agree not to provide it to anyone else and to destroy it after the lawsuit. Remember, you are not directly involved in the lawsuit. You have information that the parties to the lawsuit wish to inspect. Their desire, however, does not necessarily require you to provide anything and everything they request.

If you receive a Non-Party Request for Production and/or a Subpoena Duces Tecum, the best advice is to contact an attorney to discuss any concerns you may have. An attorney will be able to advise you of any risks you may have in responding, what you may be required to provide or allow, if anything, and what other rights you may pursue in responding to the request.

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This article was written by Max E. Fiester, an associate with
Rudolph, Fine, Porter & Johnson, LLP (www.rfpj.com) in Evansville, Indiana. For additional information, you may contact Max at 812-422-9444 (email: mef@rfpj.com). His practice areas include commercial litigation, intellectual property and insurance defense. This article is intended solely as an information source and its contents should not be used as legal advice. Readers should not act upon the information presented without professional counsel.