Category: Civil Procedure

Key Changes to the Federal Rules Governing Discovery

Important amendments went into effect on December 1.

The major changes to the Federal Rules of Civil Procedure that govern discovery in federal cases affect Rules 26, 34, and 37.[1]

Changes to Rule 26(b)(1)

The concept of proportionality and its factors are specifically included in the scope of discoverable information. The factors relating to proportionality include

    the importance of the issues at stake in the action;
the amount in controversy;
the parties’ relative access to relevant information;
the parties’ resources;
the importance of the discovery in resolving the issues; and
whether the burden or expense of the proposed discovery outweighs its likely benefit.

The language that defines the scope of discovery has also changed—the former language that discovery should be “reasonably calculated to lead to the discovery of admissible evidence” was removed. The Advisory Committee stated that this language was wrongly interpreted to define the scope of discovery and that such a reading has lead to abusively overbroad discovery.

Further, the new version of the rule includes a cross-reference to 26(b)(2) to underscore the court’s obligation to supervise discovery to prevent abuse by appropriately limiting the scope of discovery.

Last, the amendment drops the language “for good cause, the court may order discovery of any matter relevant to the subject matter involved in the action” for being unnecessary and rarely invoked.

Changes to Rule 26(c)

In a protective order, the rule now specifically states that the court can allocate expenses for the disclosure or discovery of information. Judges have always had the authority to shift the cost of discovery, but it is now codified in the rule.

Changes to Rule 26(f)(3)

The discovery plan (26(f) report) must now specifically address any issues about preserving electronically stored information (ESI) and should also include any requests that the court enter an order under Fed. R. Evid. 502(d) if the parties agree on a procedure to assert privilege after production.

Changes to Rule 34

Under revised Rule 34(b)(2), objections to document requests must be made with specificity, and boilerplate general objections are insufficient. If a producing party is withholding documents pursuant to its objections, it must say so. The party need not create a “log” of withheld documents in the manner of a privilege log, but should state, for example, the limits that the party will place on a search for documents responsive to a request that it objects to as overbroad.

Revised Rule 34(b)(2)(B) also includes language that specifically codifies the typical practice of producing copies of documents in lieu of permitting inspection, adding that parties may “state that it will produce copies of documents or of electronically stored information instead of permitting inspection.”

Changes to Rule 37

The standard for imposing sanctions for failing to preserve ESI has changed under Rule 37(e). Under the new standard, a court may sanction a party if (1) ESI should have been preserved, (2) the party failed to take reasonable steps to preserve it, and (3) it cannot be restored or replaced through additional discovery.

If the court finds that a party has prejudiced by the failure to preserve evidence, the court may only order sanctions sufficient to cure the prejudice. However, if the court finds that the party that failed to preserve acted with “intent to deprive another party of the information’s use in litigation,” it may order severe sanctions (i.e., an adverse inference or even a dismissal or default judgment against the spoliating party).

This change addresses the varying standards that courts have established in regard to sanctions, essentially adopting the rule that bad faith on the part of a spoliating party must be established for a court to order severe sanctions (compare to the Southern District of New York case law prior to these amendments that allow severe sanctions for negligent spoliation).

Other Changes

Rule 1: Amended to specifically state that parties also bear responsibility to employ the rules to “secure the just, speedy, and inexpensive determination of every action and proceeding” and not just the court. This change does not create a separate basis for sanctions. The Advisory Committee debated but ultimately did not include an explicit “duty to cooperate” on discovery.

Rule 4(m): Changed the time limit for service of a complaint from 120 days to 90 days.

Rule 16 (b)(3): Reduced the time to issue a Scheduling Order to the earlier of 90 days after any defendant has been served or 60 days after any defendant has appeared, and added three items to the list contents permitted in a Scheduling Order: (1) a provision regarding preservation of ESI, (2) a provision regarding any agreements under Fed. R. Evid 502, and (3) a requirement that before filing a discovery motion, the movant must request a conference with the court.

Rules 30, 31 and 33: Parallel amendments were made to these rules to reflect the proportionality considerations added to Rule 26(b)(1).

Rule 55: Amended to make clear that the court may set aside a final default judgment pursuant to the standards set forth in Rule 60(b) only.

Rule 84 and the Appendix of Forms: This rule, which provided a set of sample forms to use in federal cases, was abrogated as no longer necessary.

Conclusion

Many of these amendments are codifications of existing case law that governs discovery, but some, especially the amended Rule 37(e) and Rule 34(b)(2), represent the adoption of one approach from multiple competing lines of cases. The Advisory Committee notes that accompany the rules are instructive and helpful, especially in the areas where substantial changes have been made. Litigants who engage in discovery in federal court should be aware of these changes and adjust their practices accordingly.

Article By

Stephanie A. “Tess” Blair
Lorraine M. Casto
John V. Gorman
Graham B. Rollins
Andrew C. Whitney
Morgan, Lewis & Bockius LLP
Copyright © 2015 by Morgan, Lewis & Bockius LLP. All Rights Reserved

[1] Amendments went into effect for Rules 1, 4, 16, 26, 30, 31, 33, 34, 37, and 55. Rule 84 was abrogated. These amendments apply in civil cases filed on or after December 1, 2015 and “insofar as just and practicable” in all cases pending as of December 1, 2015. April 29, 2015 Order of the United States Supreme Court. A brief list of the amendments to Rules 1, 4, 16, 30, 31, 33, 55 and 84 is provided at the end of this article.

The Culling Fields: Date Range and Custodian Culling

This is part Six of the continuing series on two-filter document culling. This is very important to successful, economical document review.

First Filter – Date Range and Custodian Culling

Even when you collect in bulk, and do not keyword filter before you put custodian ESI in the review database, in most cases you should filter for date range and custodian. It is often possible for an attorney to know, for instance, that no emails before or after a certain date could possibly be relevant. That is often not a highly speculative guessing game. It is reasonable to filter on this time-line basis before the ESI goes in the database. Whenever possible, try to get agreement on date range screening from the requesting party. You may have to widen it a little, but it is worth the effort to establish a line of communication and begin a cooperative dialogue.

The second thing to talk about is which custodians you are going to include in the database. You may put 50 custodians on hold, and actually collect the ESI of 25, but that does not mean you have to load all 25 into the database for review. Here your interviews and knowledge of the case should allow you to know who the key, key custodians are. You rank them by your evaluation of the likely importance of the data they hold to the facts disputed in the case. Maybe, for instance, in your evaluation you only need to review the mailboxes of 10 of the 25 collected.

Again, disclose and try to work that out. The requesting party can reserve rights to ask for more, that is fine. They rarely do after production has been made, especially if you were careful and picked the right 10 to start with, and if you were careful during review to drop and add custodians based on what you see. If you are using predictive coding in the second filter stage, the addition or deletion of data mid-course is still possible with most software. It should be robust enough to handle such mid-course corrections. It may just slow down the ranking for a few iterations, that’s all.

To be continued …….

Article By Ralph C. Losey of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Part 1: Two-Filter Document Culling: Advanced Document Review Technique

Part 2: License to Cull: Why Efficient and Effective Document Review is Important to Our System of Justice

Part 3: The Culling Fields: Some Software is Better than Others at Efficient Document Culling

Part 4: To Cull a Mockingbird: Popular, but Risky, “Keyword” Collection Filter

Part 6: The Culling Fields: Date Range and Custodian Culling

Neiman Marcus Asks Full 7th Circuit to Consider Standing Ruling in Breach Suit

A Seventh Circuit panel that allowed a data breach suit against Neiman Marcus to proceed misapplied the Supreme Court’s precedents on standing and, “if allowed to stand, will impose wasteful litigation burdens on retailers and the federal courts,” the retailer argues in a petition filed yesterday asking the full Seventh Circuit to rehear the case.

Last month, a Seventh Circuit panel ruled that Neiman Marcus customers whose credit card information potentially was exposed in a 2013 breach of the retailer’s computer systems could proceed with their proposed class action lawsuit against the retailer. The panel found that the plaintiffs alleged sufficient “injuries associated with resolving fraudulent charges and protecting oneself against future identity theft” to establish their standing to sue in federal court, and that affected customers “should not have to wait until hackers commit identity theft or credit‐card fraud in order to give the class standing, because there is an ‘objectively reasonable likelihood’ that such an injury will occur.” The panel also found it “telling” that the retailer offered affected customers a year of free credit monitoring and identity-theft protection, and appeared to interpret this as a tacit acknowledgment that the risk to customers was more than “ephemeral.”

Neiman Marcus’s rehearing petition argues, among other things, that the panel’s reliance on the “objectively reasonable likelihood” standard for determining if a plaintiff has standing based on a potential future injury directly conflicts with a 2013 Supreme Court ruling, Clapper v. Amnesty International USA. In Clapper, the Supreme Court said plaintiffs seeking to establish standing based on a risk of future injury must show that the threatened injury is “certainly impending,” and the high court held that “the Second Circuit’s ‘objectively reasonable likelihood’ standard is inconsistent” with that requirement.

“By using an obviously wrong and overly lenient standard to determine whether the plaintiffs’ alleged future injuries provided standing, the panel committed a critical error,” Neiman Marcus’s petition argues.

In addition, Neiman Marcus argues that “there was no risk … that [plaintiffs] would be financially responsible for any fraudulent credit card charges,” and that breaches like that experienced by Neiman Marcus — which involved only payment card data and did not expose sensitive data such as Social Security numbers — “create no meaningful risk of identity theft.” Neiman Marcus’s petition also criticizes the panel for using the retailer’s offer of a year of free credit monitoring and identity-theft insurance to a broad group of customers — including customers whose data could not “conceivably” have been compromised in the breach — as evidence that the risk of injury to customers was sufficiently concrete. Such a holding “creates an unfortunate disincentive for companies to do so in the future,” Neiman Marcus wrote.

A rehearing is especially important in this case, the petition argues, because although the panel’s decision conflicts with rulings by the Third Circuit and “numerous district court decisions,” Neiman Marcus’s case is “the only appellate decision squarely considering a retail data breach in which only payment card data is stolen,” and thus “the opinion could well shape the law of standing in such cases for years to come.”

ARTICLE BY Michael Beder of Covington & Burling LLP

© 2015 Covington & Burling LLP

NFL vs. Brady: NFL Wins Initial Venue Battle

Round One of Deflategate has concluded…it’s now time for Round Two.

The initial battle over judicial forums between the National Football League and the National Football League Players Association (NFLPA) to find the most favorable venue to support their legal position has ended with U.S. District Court Judge Richard Kyle ordering the NFLPA’s Petition To Vacate The Arbitration Award rendered by Commissioner Roger Goodell(Goodell) to be transferred to the United States District Court for the Southern District of New York.

Within hours after Goodell upheld the four-game suspension of New England Patriots quarterback Tom Brady, the League’s Management Council had launched a preemptive strike against the NFLPA by filing a complaint in the U.S. District Court for the Southern District of New York, where the NFL is headquartered, seeking to confirm Goodell’s “Final Decision on Article 46 Appeal of Tom Brady.” (Article 46 of the NFL-NFLPA collective bargaining contract allows discipline of a player for conduct “detrimental to the integrity of, or public confidence in, the game of professional football.”) . The case has been assigned to Judge Richard Berman and he already has ordered the NFLPA to respond to the NFL’s filing by August 13th, well before the standard period to answer a complaint.

Brady and the NFLPA attempted an end run around the New York action in the historically player-friendly federal district court in Minnesota. They filed a Petition To Vacate Goodell’s Arbitration Award. Relying on a history of success in this venue, Brady and the NFLPA sought to vacate Goodell’s award. They were blocked, however, on July 30th when the Minnesota court said the Brady and his union must do battle with the NFL in New York in light of the league’s earlier, first-filed suit.

Absent any change in the NFPLA’s litigation, Brady and the NFLPA may be expected to respond to the NFL action directly, contending (as they attempted to do in Minnesota) that Goodell:

  • disregarded the “law of the shop” which requires NFL players to have advance notice of potential discipline,

  • disregarded the “law of the shop” that conduct detrimental discipline be fair and consistent,

  • denied Brady access to evidence and witnesses central to his appeal and his rights to a fundamentally fair hearing, and

  • was incapable of serving as an impartial arbitrator as a result of his handling Brady’s initial discipline and appeal.

Specifically, the NFLPA asserts that there was no direct evidence of Brady’s culpability cited in the report prepared by NFL-appointed investigator, attorney Ted Wells, and his investigative team, and that Goodell’s discipline was based on a “general awareness” standard created by the Commissioner to justify an “absurd and unprecedented punishment”. The NFLPA also asserts that no NFL player has ever served a suspension for “non-cooperation” or “obstruction,” as Goodell has imposed upon Brady.

The NFLPA had hoped that its action would be heard before U.S. District Judge David S. Doty, in Minneapolis. In February, Judge Doty vacated an award in the Adrian Peterson child abuse disciplinary matter when he determined that the discipline issued to Peterson was inappropriate for lack of notice and that the discipline imposed was based upon a policy that didn’t exist at the time of the Peterson’s alleged rule violation. But Brady’s case was assigned to Judge Richard Kyle, instead, who “perceive[d] no reason for this action to proceed in Minnesota.”

Here, based on its previous Minnesota claims, the NFLPA had hoped to reprise a similar argument on behalf of Brady. Now the union will be forced to assert those arguments in the NFL’s selected venue. The union will assert similar arguments to U.S. District Court Judge Richard Berman and allege that Brady was never informed he could be punished for his refusal to turn over his cellphone to Wells and his team. It may also ask the New York court to vacate the Goodell arbitration decision before the Patriots’ regular-season opener against the Pittsburgh Steelers — or issue an injunction that allows Brady to play.

The dual filings of the NFL and NFLPA presented an interesting legal issue: which lawsuit has priority? Typically, when federal judges are faced with the issue of deciding which of twocompetinglawsuits filed in separate federal jurisdictions has priority, they usually invoke the first-to-file rule. While this rule is not codified, the rule is generally considered an appropriate case management mechanism within the federal system. In general, the first-to-file rule gives priority to the first action filed over the subsequent action. The general judicial interpretation of the rule gives the decision making authority of the precedence of the first filed action to the district court judge assigned to that suit.

Federal courts have applied exceptions to the first-to-file rule if its application would create an injustice upon the party that filed the second action. One such exception that presents a strong argument against giving the first filed suit priority is the “anticipatory suit” exception. The purpose of this exception is to discourage procedurally unfair suits filed to frustrate settlement discussions, or to engage in brinkmanship, or to transform a party from defendant to plaintiff not to pursue a claim or right.

One specific rationale that supports the application of “anticipatory suit” exception is the court’s pursuit of procedural fairness. This specific rationale reflects the general judicial concern that a plaintiff should not lose its choice of the forum because the defendant anticipated the impending suit and preemptively struck by filing suit first in a different court.

Here, Judge Kyle specifically acknowledged that the NFL’s filing of the New York action “triggered application of the first-filed rule.” Judge Kyle acknowledged that the rule recognizes “comity between coequal federal courts and promotes the efficient use of judicial resources by authorizing a later-filed, substantially similar action’s transfer, stay or dismissal in deference to an earlier case”.

Judge Kyle concluded that the actions filed in Minnesota by the NFLPA and the NFL’s action filed in New York were almost duplicative and that the two cases and the issues presented in both were “flip-sides of the same coin.” In conclusion, Judge Kyle stated that the “cases are part and parcel of the same whole and should be heard together in the most appropriate forum: the Southern District of New York, where the arbitration occurred, the Award issued, and the first action concerning the Award was commenced.”

While acknowledging the order that the case should be heard in New York, NFLPA attorney Jeffrey Kessler stated, “We are happy in any federal court, which unlike the arbitration before Goodell provides a neutral forum, and we will now seek our injunction in the New York court.”

ARTICLE BY Gregg E. Clifton of Jackson Lewis P.C.

Jackson Lewis P.C. © 2015

Gone, But Not Forgotten – A Deactivated Facebook Account Can Be Discoverable

Courts have long grappled with social media in a legal context. The struggle to understand social media issues — and to craft coherent applicable legal policy — renders Crowe v. Marquette Transportation Co. Gulf-Inland, LLC amusing to show how the less-than-honest actions of an employee-plaintiff can make these difficult legal questions fairly simple for a court.

In May of 2014, Brannon Crowe sued Marquette Transportation, his employer, for an injury to his knee that he claimed to have suffered in an accident at work. Interestingly, however, Crowe allegedly sent a co-worker a message on Facebook which stated that he received the injury during a fishing trip, and not at work. When confronted with the message to the co-worker by opposing counsel during a deposition, Crowe stated the account the message was sent from was Brannon “CroWe,” and it couldn’t be his because he didn’t have a capital “W” in his last name.

Facebook e-discovery in employment litigationAt the deposition, Crowe also said that he no longer had an account after the previous October, and his response to a discovery request for the contents of his account was that, in addition to such a request being vague, overbroad and unduly burdensome, he didn’t presently have a Facebook account. The court ordered Crowe to provide the contents of his account for the court to review in camera to determine if the contents of the account should indeed be discoverable. Later, however, Crowe’s counsel submitted to the court 4,000 pages of Facebook account information from the Brannon CroWe account, with an interesting wrinkle – the records of the account indicate that the account was deactivated – not deleted – four days after the discovery request for the account’s contents.

The court was understandably unamused, and suggested that the in camera review of 4,000 pages of Facebook account information would be a waste of time since this account information should have been produced earlier in response to Marquette’s request. The contradiction with Crowe’s testimony alone was enough to render the account information discoverable. Rather than review the documents fully in camera, the court ordered Crowe to turn over every single page of the Facebook account history to Marquette, as well as any login information for any Facebook accounts Crowe had at that time or in the past, and Crowe was ordered to consent to any authorization for Marquette to subpoena his Facebook information.

In effect, Crowe made the contents of the account discoverable through his attempts to keep it from being discovered, and that made the court’s decision on the issue clear. Luckily for Crowe, he only deactivated the account rather than deleted it, since he had a duty to preserve evidence in litigation. Spoliation of evidence is the negligent or intentional destruction or alteration of evidence that may be required in a lawsuit. Even though the evidence doesn’t look good for Crowe in the present case, had he deleted the account entirely, he would have been subject to the spoliation inference, which is a negative evidentiary inference in favor of the opposing party. A showing that a party has destroyed relevant evidence can lead to punitive sanctions against him as well.

Social media provides an abundant resource of data about a litigant, and both employers and employees alike should be a wary of even private messages sent to others in that context. When employees raise issues against employers in a legal setting, their interactions with coworkers on social media may be discoverable. This case also raises questions about how far those involved in legal proceedings can or should go to protect themselves with regard to their social media accounts. As courts become increasingly comfortable with the legal implications of social media and technology, issues such as evidence spoliation through deactivation and deletion will become more and more prominent as a trap for the unwary.

ARTICLE BY Brittany Blackburn Koch of McBrayer, McGinnis, Leslie and Kirkland, PLLC

© 2015 by McBrayer, McGinnis, Leslie & Kirkland, PLLC. All rights reserved.

Home Depot Moves to Dismiss Consumer Data Breach Claims for Lack of Standing

Home Depot has staked its defense of consumer claims arising from the 2014 theft of payment card data from the home improvement retailer on the asserted absence of injuries sufficient to confer standing to sue.  Because consumers rarely sustain out-of-pocket losses when their payment card numbers are stolen, lack of standing is typically the primary ground for seeking dismissal of consumer data breach claims. While many courts have been receptive to arguments seeking dismissal of consumer data breach claims for lack of standing, decisions in recent cases – including, most significantly, the Target data breach case – have found that non-pecuniary harms constitute sufficient injury to confer standing.  The survival of the consumer claims will depend on which line of precedent the Home Depot court follows.

Arguments as to standing are grounded in Article III, Section 2 of the United States Constitution, which limits the jurisdiction of federal courts to “cases” or “controversies.”   To constitute a case or controversy, a claim cannot arise from a speculative or potential harm, but rather must concern an actual or imminent injury.  Thus, in Clapper v. Amnesty International USA, 133 S. Ct. 1138 (2013), the Supreme Court ruled that mere interception of private data – in that case, by the National Security Agency, through its wiretaps of telephone and email communications – did not confer standing to sue.  Clapper held that speculation that intercepted data might be misused did not confer Article III standing; actual use or misuse of the intercepted information was required.  Defendants in privacy cases, citing Clapper, have succeeded in dismissing data breach claims for lack of standing where data breach plaintiffs have not alleged actual misuse of their data.  See, e.g., Polanco v. Omnicell, Inc., 988 F. Supp. 2d 451 (D.N.J. 2013); In re Barnes & Noble Pin Pad Litig., No. 12-8617, 2013 WL 4759588 (N.D. Ill. Sep. 3, 2013); Yunker v. Pandora Media, Inc., No. 11-3113, 2013 WL 1282980 (N.D. Cal. Mar. 26, 2013).

Home Depot’s brief in support of its motion to dismiss relies heavily on Clapper to support its argument that none of the named plaintiffs have suffered actionable injuries.  Home Depot contends that consumers could not have been injured when card issuers hold consumers harmless for fraudulent charges and Home Depot offered free credit monitoring to affected customers.  The Home Depot brief dismisses plaintiffs’ attempts to plead non-monetary harms, alleging that none of the alleged harms constitute injuries that are cognizable under Article III.  For example, some plaintiffs alleged that they suffered inconvenience and embarrassment as a result of temporarily frozen bank accounts.  According to Home Depot, in the absence of any out-of-pocket losses such alleged harms are not actionable injuries.  Some plaintiffs incurred out-of-pocket credit monitoring costs, but Home Depot takes the position that doing so was gratuitous in light of the free services offered by Home Depot.  Some plaintiffs also alleged out-of-pocket costs associated with fraudulent charges on their payment cards, but Home Depot contends that such injuries are not fairly traceable to Home Depot because such charges should have been covered by the card issuers.

There are also plaintiffs who alleged that they suffered identity theft.  Home Depot argues that such allegations should be rejected as implausible because, based on plaintiffs’ own allegations, the data theft did not result in the theft of social security numbers or date of birth information, both of which would be required to successfully steal an identity was not compromised in the HD data breach.

Although Home Depot makes strong arguments why plaintiffs lack standing, it is constrained to admit in its brief that the court hearing the Target data breach cases rejected an identical standing argument that and been advanced by Target.  In the opinion denying Target’s motion to dismiss, the court gave Target’s standing arguments cursory treatment, finding that “Plaintiffs have alleged injury” in the form of “unlawful charges, restricted or blocked access to bank accounts, inability to pay other bills, and late payment charges or new card fees.”  Although Target, like Home Depot, contended that such alleged injuries are insufficient to confer standing because “Plaintiffs do not allege that their expenses were unreimbursed or say whether they or their bank closed their accounts . . . ,” the court rejected this argument, stating that Target had “set a too-high standard for Plaintiffs to meet at the motion-to-dismiss stage.”

Home Depot characterizes the Target decision as an outlier that offers no support for its rejection of Target’s standing arguments.  Further, the Target decision did not rule out the possibility injuries alleged would not be fairly traceable to Target’s conduct, stating that, “[s]hould discovery fail to bear out Plaintiffs’ allegations, Target may move for summary judgment on the issue.”  Although the settlement of Target’s consumer claims means that the proposition will not be tested in that case, the Target court’s recognition that injury matters for standing purposes provides some support for Home Depot’s position that the Target decision should be disregarded if it is apparent at the pleading stage that no injury has occurred.

ARTICLE BY Kevin M. McGinty of Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C.
©1994-2015 Mintz, Levin, Cohn, Ferris, Glovsky and Popeo, P.C. All Rights Reserved.

Register for the 9th Annual National Institute on E-Discovery – May 15th in New York City

ABA Nat Inst E Discov May 15

Remaining current is critical to successful litigation. This program is relevant for both in-house and outside counsel who are involved in litigation and the discovery process. E-Discovery is a rapidly evolving field with laws and regulations that are constantly changing.  Attendees of this program will gain practical knowledge that may be implemented immediately in day-to-day operations.

Additional Information Institute Brochure

  • Noted practitioners and jurists will address:
  • Practical tips for managing litigation holds
  • Preserving personal data devices in light of the varying interpretations of “possession, custody, and control”
  • Judges’ perspectives on the Proposed Federal Rule of Civil Procedure amendments
  • Recent court decisions, as reviewed by one of the industry’s leading authorities on E-Discovery case law
  • Meeting ethical obligations related to securing clients’ E-Discovery data
  • The unique aspects of cross-border E-Discovery between the U.S., and the European Union, Latin America, Asia-Pacific, and Canada

Register now!

Subpoenas Without Depositions: A Valuable Point From The North Carolina Business Court

8 inch color white background

Can you send a subpoena duces tecum — which translated from Latin is “a writ commanding a person to produce in court certain designated documents or evidence ” —  without coupling it with a deposition?

Maybe that question has never puzzled you, but in an Order of the Business Court on February 12, 2015 in Harriott v. Central Carolina Surgical Eye Associates, P.A. Judge Bledsoe answered whether a subpoena duces tecum can be served without noticing a deposition in conjunction with the subpoena.

Plaintiff had served a subpoena duces tecum on several entities which were not party to the case. Those entities objected contending that a “subpoena duces tecum must be issued in conjunction with a proceeding in which testimony is to be received.”

Judge Bledsoe disagreed, ruling “a subpoena duces tecum . . . can . . . be used to compel a non-party to produce documents without a concurrent request to testify.”  Order at 1-2.

The governing Rule of Civil Procedure (NCRCP 45) is less than clear on this point. It says that a “command to produce records, books, papers, electronically stored information, or tangible things may be joined with a command to appear at trial or hearing or at a deposition, or any subpoena may be issued separately.” NCRCP 45(a)(2).

The federal rule, by contrast,  is explicit on being able to serve a subpoena for documents without a contemporaneous deposition.  It says that:

Combining or Separating a Command to Produce or to Permit Inspection . . . . A command to produce documents, electronically stored information, or tangible things or to permit the inspection of premises may be included in a subpoena commanding attendance at a deposition, hearing, or trial, or may be set out in a separate subpoena.

FRCP45(a)(1)(C).

So, if there was any doubt about this practical nuts and bolts issue, state law practice is now consistent with the federal rule.  Subpoena away.  At least in the Business Court.