If you are part of a heavily regulated—or heavily litigated—industry, at some point, you or your company are likely to receive a third-party subpoena.

This post offers guidance on how to respond to this common discovery tool.

What Is a Third-Party Subpoena?

A subpoena is a tool that parties to litigation can use to obtain documents and other information from persons or entities who are not a part of the case but may have documents or information relevant to the case. A subpoena functions like a Civil Investigative Demand, a tool the government often uses during False Claims Act investigations, but it is issued by private parties involved in civil litigation. We have previously covered how to respond to a Civil Investigative Demand.

Federal and state rules of civil procedure typically allow parties to issue third-party subpoenas during the discovery phase of litigation. Rule 45 of the Federal Rules of Civil Procedure, the discovery rule used by federal litigants, exemplifies the types of documents and information that can be sought through a subpoena, though each state's rules vary. Rule 45 allows a party to command that a third party do any or all of the following:

• Attend and testify at a deposition or other proceeding.
• Produce documents or other property in the recipient's possession.
• Permit inspection of a premises.

A subpoena to produce "designated" documents, a commonly issued type of subpoena, will often come with a list of document requests identifying categories...

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