Does Rule 45 Protect Nonparties From Undue Burden?

By Matt Hamilton, Donna Fisher and Sandra Adams (October 2, 2018, 5:01 PM EDT) -- Parties can serve subpoenas seeking discovery from nonparties pursuant to Federal Rule of Civil Procedure 45. The rule mandates that the court protect nonparties from undue burden and provides protections for those subject to subpoena, but courts are inconsistent in applying the tools provided by Rule 45. Since 2015, Rule 45's protections have been supplemented by Rule 26's explicit requirement that discovery be proportional to the needs of the case.[1] In this article, we analyze four recent decisions that addressed motions to quash or to shift the cost of compliance. These cases illustrate the wide range of measures that courts may employ to lessen the burden on nonparties. As we will see, while courts often grant relief to nonparties, that relief can take many forms — narrowing requests based on a relevancy or proportionality analysis, shifting a portion of reasonable costs to the requesting party or quashing the subpoena entirely. Unless the subpoena is quashed in its entirety, however, the nonparty will still be required to incur some cost of compliance....

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