Episode 96: Key Considerations for Issuing and Enforcing Third Party Subpoenas

Episode 96 of the Case of the Week series discussed the recent case of Black v. Boomsourcing LLC, which was decided on January 24, 2023. This case comes before the Court on a motion to enforce a third party subpoena and has some interesting teaching moments for subpoenas under Rule 45 of the Federal Rules of Civil Procedure — understanding how the burden works, timing and whether the 100 mile rule allows the served party to avoid compliance. Spoiler alert, the Court enforces the subpoena.

Introduction

Hi, and welcome to Episode 96 of our Case of the Week series, published in partnership with ACEDS. My name is Kelly Twigger. I am the CEO and founder of eDiscovery Assistant and the principal at ESI Attorneys. Thanks so much for joining me today. We are now one week away from the University of Florida Levin College of Law E-Discovery Conference to take place February 8 and 9th, 2023.

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Finally, we will be gearing up for Legalweek in New York City on the March 20th to 23rd as well and hope to see many of you there.

This week’s decision comes to us from the case of Black v. Boomsourcing LLC. This is a decision from United States Magistrate Judge Dustin Pead out of the District of Utah. And it’s very recent, from January 24, 2023. Judge Pead has many decisions in our ediscovery system database, 45 to be exact, and this decision covers the following issues general objections, protective order, third party subpoena, and proportionality.

Now, the reason that I chose this case is because we are seeing more and more motions to enforce or compel production on third party subpoenas under Rule 45.

In fact, we’ve seen 990 decisions on third party subpoenas in our database since January 1 of 2022. This issue is really key based on rulings in other cases that we’ve talked about in on our Case of the Week series, including the In re Pork Antitrust Litigation in which employee cell phones were subpoenaed via Rule 45 when the defendant claimed that did not have possession, custody or control to provide that information in discovery. So, we’re seeing a huge use of Rule 45 in discovery and the need to get prepared for it and think through how you’re going to engage with Rule 45 is key. This decision really highlights the key processes and considerations in issuing and enforcing third party subpoenas, and it’s worth a read.

Background

The procedural point here is really what’s key. The underlying action here is litigation that was filed in the Northern District of Illinois for a violation of the TCPA, which is the Telephone Consumer Protection Act. In that case, in the Northern District of Illinois, the plaintiff alleged that the defendant, First Impression Interactive, engaged in the practice of making automated marketing calls to individuals on the Do Not Call registry without consent. These third party subpoenas are being served on a third party that is beyond the jurisdiction of the Northern District of Illinois and is not yet a party to that case. As a result, the plaintiff, Black, was required to start a separate proceeding in the federal court within 100 miles of the third party — Boomsourcing — to allow it to be able to issue the subpoenas.

Facts

The facts are these: the plaintiff served Boomsourcing with two subpoenas in February of 2022 seeking call logs dating back to May 2017 that are the basis for its claims in the Northern District of Illinois, litigation counsel for Boomsourcing spoke with plaintiff’s counsel and negotiated a protective order to be entered before any production would be made.

Boomsourcing then produced a small number of materials in July of 2022—about five months after the subpoena was issued—then asked for additional time to review the majority of the remaining production. Prior to doing any kind of production, Boomsourcing hired new counsel, and the new counsel asserted that production would cost tens of thousands of dollars and then requested that Black pay the costs upfront before it would comply.

Okay, those are the facts as we’ve got them.

Analysis

What is the Court’s analysis here? Well, the Court starts, as we would expect, with Rule 45, which governs motions to compel compliance with and motions to quash a third party subpoena. And the Court, as I mentioned, articulates very clearly the standard for utilizing these subpoenas in discovery. The party issuing a subpoena “must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.”

And if the party commanded to produce documents serves written objections to the subpoena, the requesting party must seek compliance by filing a motion to compel production of the documents. That’s what’s happened here. If the non-party wishes to challenge the subpoena, it does so by filing a motion to quash. Any objection to a subpoena “must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.”

That is an important deadline and one that courts are holding litigants to on a regular basis. Now, Rule 45(d) also sets forth the conditions under which the Court must quash or modify a subpoena, including when the subpoena “requires disclosure of privileged or other protected matter, if no exception or waiver applies, fails to allow a reasonable time to comply, or when the subpoena subjects the person to undue burden.”

Rule 45 also provides that a court with the discretion to quash or modify a subpoena that requires disclosure of trade secrets or confidential research, development, or any commercial information. Now, the Court notes also that the scope of discovery under Rule 45 is the same as it is under Rule 26, meaning that discovery must be relevant and proportional to the needs of the case. Now, with that underlying basis of what Rule 45 requires, let’s look at the facts as they apply to how the parties have proceeded here.

Boomsourcing did not file a motion to quash, so we are solely before the court on a motion to enforce the subpoenas. And the reason that that’s important is because on a motion to quash, you push the burden of showing the need for the information back to the plaintiff. Here, because no motion to quash is filed, the burden just rests with the court determining whether or not the information sought on the subpoena is in fact relevant and proportional to the needs of the case.

The Court then looks to the three categories of data that are sought and are considered on the subpoenas.The first being call logs, the second, communications between Boomsourcing and the defendants in the underlying Northern District of Illinois litigation, and third, information from the Boomsourcing soundboard technology that is used to place the robotic calls.

Looking first at the call logs, the Court reviewed the request for call logs and denied Boomsourcing’s argument that they were not relevant, citing specific case law that call logs are, “standard, fair,” in TCPA actions. This one was sort of a no brainer out of the gate.

Boomsourcing also argued that the motion to enforce the subpoenas should be denied because the plaintiff has moved to have Boomsourcing added as a party to the Northern District of Illinois proceeding. The Court notes that that argument is essentially a request to delay discovery and that it’s not a proper reason to deny the enforcement under Rule 45. So, no equity considered by the Court there as to whether or not the discovery would ultimately have to be produced in the Northern District of Illinois action. Practically speaking, if Boomsourcing produces it here on a third party subpoena, then it shouldn’t have to be reproduced in the Northern District of Illinois action. So, no real reason to delay the discovery on these subpoenas. And the Court states as such.

Boomsourcing next makes an argument that is really key to Rule 45. It argues that the subpoenas are invalid because they failed to provide a place of compliance within 100 miles of where Boomsourcing is located.

The Court looks at that and addresses it specifically, and I think that’s key for us so that you know that this is not an argument you can put forth on Rule 45 or at least how to respond to it if someone raises it against you. The Court notes that the fact that the subpoenas require only the production of electronic information negates the 100 miles limitation of Rule 45 because the subpoenas do not require Bloomberg to travel outside the 100 miles radius, that rule is not a basis for refusing to comply with the subpoenas under Rule 45. The Court also rejects the notion that the production is overly burdensome, and it notes specifically that Boomsourcing never mentioned any undue burden until its new counsel appeared on the scene and that the company offers “no support, close quote, for the idea that the production is unduly burdensome.”

So again, as we’ve talked about multiple times on the #caseoftheweek, we’ve got Boomsourcing just making an unsupported statement that the production is unduly burdensome, but not backing it up with any discussion of quantities or costs associated with why this request under Rule 45 might be disproportionate to the needs of the case.

Okay, so with regard to the call logs, those are ordered to be produced.

The second category at issue is a request for all the communications between Boomsourcing and the defendants in the underlying action. And this is where we’re going to see a lot more information. We’re talking about around 70,000 emails. Now, when the parties started out with the communications, they were working on search term negotiations. When the talk stalled and then new counsel took over for Boomsourcing, the Court ordered the parties to come up with a list of search terms to narrow down the scope of that request so that responsive information could be produced.

So essentially, the Court grants the motion to enforce but requires the parties to go back to the drawing board, find some search terms that could narrow that 70,000 documents set down to what was reasonable and those need to be reviewed and produced.

The third and final category are documents about the Boomsourcing sound board technology. Now, this is where Boomsourcing argues that the disclosure of that information is prejudicial. Citing specific TCPA case law, the Court found that the information is relevant in these types of cases and that a protective order can be negotiated to resolve any potential disclosure or confidentiality issues. We are seeing a much broader use of protective orders, called confidentiality orders by courts in case law, particularly over 2022, but back into 2021 as well, to be able to allow relevant information that should otherwise be protected from public disclosure to be exchanged between the parties where litigation is key.

Okay, so those are the three categories in terms of what the Court looks at. And finally, the Court notes that the other respondent on the subpoena, which is a holding company for Boomsourcing, raised objections to the subpoena, but not until January 2023, which was 11 months after the subpoenas were served and far outside the 14-day window that’s articulated in Rule 45(d)(2)(b).

The Court ordered that any responsive documents from the Boomsourcing holding company had to be produced and that they had waived their objections by failing to respond. So that’s a really key point on the timing associated with Rule 45 and your objections.

Takeaways

This decision does an excellent job of laying out the procedure required for third party subpoenas and the analysis under Rule 45 on a motion to enforce compliance. I encourage you to read it and to think about it carefully as you are putting together your discovery strategy where third party subpoenas are going to need to be issued. It’s time consuming to get a new action started, to get subpoenas served, then to have to move to enforce them, and then to get the information and time to be able to use it effectively in depositions and motion practice and litigation. You’ve got to plan early to use third party subpoenas. Note here that because Boomsourcing did not file a motion to quash, the courts citing to the TCPA case law finding the data requested was relevant, was sufficient.

Had a motion to quash been filed, as I mentioned, that would have shifted the burden to plaintiff to make that case. It’s not a hard one to make on these particular facts, but it is a key distinction when it comes to litigation strategy. It’s interesting to me here that Boomsourcing hired new counsel who then subsequently made objections to the subpoena, some on proportionality grounds, but didn’t take the active steps to move to quash the subpoena or to really think through exactly what the litigation strategy would be here.

It’s also key here that the court dismisses any argument that documents being produced electronically are not subject to the 100 miles rule. It’s common sense, but it’s also great to have it spelled out where the parties are exchanging ESI only. And there’s no in person requirement for a deposition, so keep this one in your back pocket. If someone comes to you with that argument, you can use this decision.

Final takeaway — know the timing for objecting to a third party subpoena. I’ve mentioned it a couple of times. It’s very short at 14 days. And you will waive your objections by failing to respond. If you are in house and you receive a subpoena, get it to your discovery counsel immediately so that he or she can work to identify potential objections and make them in a timely fashion or negotiate a longer time period to respond. Make sure you get that extension of time in writing. There are no exceptions under Rule 45, and you will waive your objections if they are not timely on a third party subpoena.

Conclusion

Okay, that’s our Case of the Week for this week. Thanks so much for joining me. We’ll be off next week for the University of Florida Levin College of Law E-Discovery Conference. Please join us Wednesday morning for the first session. I’ll be moderating the case law panel with United States Magistrate Judge Mac McCoy, as well as Ryan Tilot, who is counsel for Gunster.

We look forward to a discussion of many of the issues that came up in 2022 and hope that you’ll join us. As always, if you’re interested in doing a free trial of eDiscovery Assistant in our case law and resource database, sign up or reach out to us at support@ediscoveryassistant.com.

Thanks so much. Have a great day.