Tips

Hitting a Home Run on Non-Party Discovery
By: Andy Jones, Sawicki Law

It is 4:30 on Friday afternoon, and you have a date at 7:05 p.m. with the Texas Rangers. Cold drinks, delicious ballpark food, bright lights. But … the phone rings. Your boss just finished deposing a key party in your case and discovered a non-party holds documents that will force your opponent to the settlement table. She wants to know how to get those documents before you leave for the day, but you have never before handled non-party discovery. Are you going to strike out and miss the game pouring over caselaw, or will you slide into home in time for the national anthem? Crack open the Texas Rules of Civil Procedure, ask yourself some questions, and you just might make it to the game.

Which rules apply?

There are only certain kinds of discovery requests which can be sent to a non-party. Texas Rule of Civil Procedure 205 (TRCP) identifies the specific forms of discovery which can be used to obtain information from non-parties. Notably, all require a subpoena or court order. In the case of your boss and the non-party documents, the options available in TRCP 205.1(a)-(d) will be sufficient.

TRCP 205.1(a)-(d) allows for oral depositions, depositions on written questions, requests for production in conjunction with a deposition (written or oral), and requests for production to be issued to a non-party. All of these require you to issue a subpoena compelling the non-party to do what you want them to do. As such, TRCP 176, the rule pertaining to subpoenas generally, applies. Additionally, each of the forms of discovery identified in TRCP 205.1 requires you, in addition to following the subpoena rule, to follow the rules applicable to the form of discovery. In this scenario, your boss wants to get the documents as fast as possible, and she will worry about the hearsay objection later. Thus, a request for production under TRCP 205.1(d) seems appropriate. Importantly, do not forget, no matter what discovery device you chose, to file your TRCP 176 subpoena and discovery request with the court per TRCP 191.4(b)(1).

Where is the non-party?

To satisfy the subpoena requirement, where your non-party is matters. If your target non-party is more than 150 miles from the county in which appearance at the deposition or production of the documents is required, then you will need to pursue Letters Rogatory. Luckily, the non-party in your case is within 150 miles from the county of production. Launching your request for production can go forth without resorting to something that sounds like it came from the Pirates of Penzance.

What to prepare and what to do with it?

To successfully obtain your documents by request for production from the non-party, you must serve notice to the non-party and all parties as required by TRCP 205.2 and 205.3. To make for easy drafting, TRCP 205.3(b) tells you what needs to be in the notice to be served. TRCP 205.2 requires the notice for the request for production you are planning on sending to be served at least 10 days before the subpoena compelling production.

In your notice, specify, per TRCP 205.3(b)(2) a “reasonable time and place for the production” to occur. Knowing how clear a “reasonable” standard can be, do some research if you are concerned that the amount of time you are giving the non-party will stand up to scrutiny. That said, a call ahead to the non-party may help identify their service contact and what amount of time will be “reasonable” for them to produce the documents. Your notice must also, per TRCP 205.3(b)(3), “describe … with reasonable particularity” the documents you seek. To avoid striking out on discovery objections, use the same request for production in TRCP 205.3(b)(3) as you will in your TRCP 176.2(b) subpoena and narrowly tailor it to comply with the scope of discovery in your case.

Once your notice is drafted, serve it using the TRCP-approved methods of service. In the case of your request for production, wait the 10 days required under TRCP 205.2, and then serve your TRCP 176 subpoena, allowing for the “reasonable time” for production to occur as contemplated  in TRCP 205.3(b)(2).

Remember, like in every baseball game, the home team is not the only one that gets to be at bat. The non-party or other parties in your case can file a motion to quash your subpoena. But, if you followed TRCP 205, 176, 191, and properly crafted your request for production, there should be joy in Mudville. Now, send your plan to your boss and enjoy the game.

Andy Jones is a senior associate at Sawicki Law. He can be reached at ajones@sawickilawfirm.com.