Summary. A subpoena to a company that is not a party is a deadline problem before it is a legal problem, and the most valuable action available — a timely written objection — takes an afternoon and shifts the entire burden of going forward to the issuing party. This checklist runs the response in the order the clock requires: validate service and compliance geography on day one, issue a preservation hold, identify whose privilege and confidentiality are implicated, serve a specific objection with a quantified burden showing and a narrowed proposal before day fourteen, then negotiate scope, cost, and format. It closes with production mechanics, testimony, and motion practice.

What this checklist is for. Responding to a third-party subpoena. For the full treatment, see Responding to a Third-Party Subpoena and Rule 45 Subpoenas to Nonparties.

Phase 1 — Day one

  • Date-stamp the subpoena and record how and on whom it was served.
  • Calendar two dates: the stated compliance date, and the objection deadline — the earlier of the compliance date or fourteen days after service.
  • Identify the type of demand: federal Rule 45, a state subpoena (possibly domesticated under the UIDDA), an administrative or grand jury subpoena, a civil investigative demand, or an arbitration subpoena. The rules differ completely.
  • Assign one owner inside the company, with authority, and engage counsel.
  • Issue a written litigation hold covering the likely custodians and systems, suspend automated deletion, and collect acknowledgments.
  • Verify facial validity: proper service; place of compliance within 100 miles of where the company resides, is employed, or regularly transacts business in person; witness fee tendered if testimony is commanded; and a reasonable time to comply.

Why this matters. The fourteen-day objection is the most valuable protection in the rule and it is waived by silence. Everything else in this checklist depends on it being served on time.

Phase 2 — Days two through five

  • Map each request to systems, custodians, approximate volume, and estimated cost. One page, in a table.
  • Pull the docket and read the complaint. Determine whether the material is available from a party, which is the single most effective objection.
  • Identify problem categories:
    • The company's own privileged material and work product.
    • Another party's privilege — a client, customer, or former employer.
    • Trade secrets and competitively sensitive information.
    • Personal data of employees or customers, and any state notice statute.
    • Material subject to a confidentiality agreement with a notice-and-cooperation provision.
    • Regulated data — protected health information, financial records, educational records, or communications content protected by the Stored Communications Act.
  • Notify affected third parties in writing, with a deadline, stating that the company will produce absent an objection.
  • Obtain and read the protective order in the case; confirm a nonparty may designate and that an attorneys'-eyes-only tier exists if needed.

Phase 3 — The objection, before day fourteen

  • Serve it in writing, on the party or attorney designated in the subpoena, by email and mail, with proof.
  • Identify the subpoena and the responding entity, and state nonparty status with a reservation of all rights under Rule 45.
  • State general objections once: privilege; material available from a party; material not in the company's possession, custody, or control; overbreadth as to time; and undue burden and significant expense.
  • State specific objections request by request, with the defect identified concretely.
  • Include a quantified burden showing — custodians, systems, volume in gigabytes or documents, estimated vendor and review cost, and hours.
  • Object to the place of compliance if it is defective.
  • Make an offer: a narrowed set, subject to a protective order and to an agreement on cost.
  • Raise cost shifting, with an estimate and a proposed mechanism.
  • Propose a meet-and-confer date.
  • Reserve privilege and state that withheld material will be logged under Rule 45(e)(2).

Phase 4 — Negotiating

  • Scope: date range, custodians, subject matter, and document types.
  • Search terms, with hit counts reported before review — the most effective way to demonstrate burden and to narrow productively.
  • Substitutes: a declaration, a summary, a system export, a stipulation, or a key-document set. Ask what the requesting party is trying to prove.
  • Format: native or imaged, metadata fields, de-duplication.
  • Cost sharing, with the mechanism specified — direct vendor engagement, reimbursement on invoice, or a fixed fee.
  • Schedule, in phases, most important material first.
  • Confidentiality, including accession to the protective order and the right to designate.
  • Offer a business records certification under Federal Rule of Evidence 902(11) in lieu of a custodian deposition.
  • Ask for a Rule 502(d) order covering the nonparty production.
  • Ask for confirmation that the agreed production satisfies the subpoena in full.
  • Confirm the agreement in writing.

Phase 5 — Producing

  • Collect defensibly, and document the process: custodians, sources, terms, date ranges, exclusions, and who did what.
  • Review for responsiveness and privilege.
  • Designate confidentiality before producing, applying the protective order's legend.
  • Prepare the privilege log, in the agreed form.
  • Produce with a cover letter identifying the Bates range, the requests answered, and the designations.
  • Retain the production set, load files, and search reports for the life of the case.
  • Supplement if additional material is located, and say so.

Phase 6 — Testimony, if commanded

  • Object in writing to overbroad topics before the deposition, and meet and confer.
  • Designate for knowledge, not seniority, and prepare the witness on the designated topics and their boundaries.
  • Prepare on privilege, so the witness stops rather than answering.
  • Have counsel present; a nonparty witness without counsel is at a real disadvantage.
  • Negotiate duration and location; remote depositions have removed most travel objections.
  • Seek costs where the burden is substantial.
  • Offer a declaration instead for a narrow factual point.

Phase 7 — If it goes to motion

  • File in the court for the district where compliance is required — not the issuing court.
  • Grounds the court must grant: unreasonable time, exceeding the geographic limits, privileged matter, or undue burden.
  • Grounds the court may grant: trade secrets and confidential commercial information; unretained expert opinion.
  • Support burden with a declaration containing numbers, signed by someone who knows.
  • Consider transfer under Rule 45(f) — with your consent, or on exceptional circumstances — where the issuing judge has resolved the same scope question.
  • Seek fees under Rule 45(d)(1) where the subpoena was facially overbroad, sought material available from a party, or was pressed after a documented objection.
  • Never simply fail to appear. A timely objection is an adequate excuse; silence is contempt.

Common mistakes

  1. Missing the fourteen-day objection, and then arguing burden with no leverage.
  2. Producing everything immediately without a protective order, a cost discussion, or third-party notice.
  3. Boilerplate objections with no specifics and no numbers.
  4. No litigation hold, and routine deletion continuing.
  5. Failing to notify the customer, employee, or former client whose privilege or confidentiality is implicated.
  6. Producing communications content that the Stored Communications Act bars a provider from disclosing.
  7. Filing the motion in the issuing court rather than the compliance court.
  8. Raising cost shifting after production, when the argument is largely gone.
  9. Producing without a Rule 502(d) order, so an inadvertent privileged document is a waiver fight.
  10. No record of what was produced, so a completeness dispute cannot be answered.

Primary authority

  • Fed. R. Civ. P. 45, particularly (a)(4) (notice to parties), (b) (service and fees), (c) (place of compliance), (d)(1) (duty to avoid burden), (d)(2)(B) (objection and cost protection), (d)(3) (quash and modify), (e)(2) (privilege), (f) (transfer), and (g) (contempt).
  • Fed. R. Civ. P. 26(b)(1) (proportionality) and 26(c) (protective orders).
  • Fed. R. Evid. 502(d) and 902(11) and (13).
  • 18 U.S.C. § 2702 (Stored Communications Act); 45 C.F.R. § 164.512(e) (HIPAA).
  • The rule itself: Fed. R. Civ. P. 45(a) (form and issuance), § 45(b) (service and fees), § 45(c) (the 100-mile place-of-compliance limit), § 45(d)(1) (undue burden), § 45(d)(2)(B) (the fourteen-day objection), § 45(d)(3)(A)–(B) (mandatory and discretionary quash), § 45(e)(1)–(2) (form of production and privilege logs), § 45(f) (transfer), § 45(g) (contempt).
  • Scope and protection: Fed. R. Civ. P. 26(b)(1) (proportionality), § 26(b)(2)(B) (not reasonably accessible ESI), § 26(b)(5)(B) (clawback procedure), § 26(c) (protective orders and cost allocation), § 34(c) (nonparty document production), § 30(b)(6) (organizational testimony), § 37(e) (ESI preservation).
  • Privilege: Fed. R. Evid. 501, § 502(b) (inadvertent disclosure), § 502(d) (non-waiver order).
  • Statutory bars on production: 18 U.S.C. § 2702 and § 2703 (Stored Communications Act); 45 C.F.R. § 164.512(e) (HIPAA subpoenas and qualified protective orders); 20 U.S.C. § 1232g(b)(2) (FERPA notice); 15 U.S.C. § 1681b(a)(1) (consumer reports by court order); 26 U.S.C. § 6103 (federal tax returns).
  • Cross-border: 28 U.S.C. § 1782 (aid to foreign tribunals) and the Hague Evidence Convention, Articles 1–14.

Related

This checklist is educational and not legal advice. Subpoena practice differs between federal and state courts and among states, and sector-specific statutes impose additional requirements. Consult qualified litigation counsel promptly; the objection window is short.