Tips and Tricks for Third-Party Subpoenas in Texas
by T.J. Jones and Ali Ohlinger
Third-party subpoenas are a useful tool in any litigator’s arsenal, but few practitioners use them properly.
Governed by Tex. R. Civ. P. 176 (and, occasionally, Rules 205 and 199), the basics of subpoena practice are fairly well known. Subpoenas: (1) can request the production of documents or a deposition (or both); (2) must be served in person; and (3) cannot compel attendance or production more than 150 miles from where the subpoenaed subject resides or is served. See Rules 176.2, 176.5 and 176.3.
The below refresher provides some additional tips and trips to help you effectively procure discovery from a third party, as well as avoid common pitfalls:
Nullifying the 150-Mile Rule: Almost all litigators run into this issue. You want to subpoena documents from a subject located in Houston, but they reside outside of the 150-mile radius of where your office is located in Dallas. How do you get records without subjecting your subpoena to a motion for protection pursuant to Rule 176.3? Simply require the subject to produce the documents at the designated time at their own residence or business and schedule a vendor to travel to their residence and pick up the documents from them. You should also have an alternative option in the subpoena for electronic delivery (e.g., e-mail or share link), which most people will take advantage of as it saves everyone time and money. Unfortunately, there is no similar procedure for obtaining testimony, as the district court cannot compel anyone to appear as a witness if that person resides outside of the 150-mile subpoena range. See Tex. R. Civ. P. 176.3; In re Proassurance Ins. Co., No. 05-15-01256-CV, 2016 WL 25645, at *2 (Tex. App. Jan. 4, 2016).
Notice Requirements: To obtain documents from a third-party by subpoena, you must issue a notice of intent 10 days before actually serving the subpoena on the third party. In practice, this notice of intent should include a copy of the subpoena to be issued and be served on all parties to the case (usually via e-service to attorneys of record), as well as the subject you intend to subpoena (usually by certified mail). Notably, if you are seeking documents and a deposition, you do not have to follow the 10-day notice rule, but the deposition notice must be otherwise timely. See Rule 205.2.
Response Time Is Not 30 Days: Some opposing practitioners will argue that they get 30 days to respond to a subpoena for documents. This is false. As long as the notice required by Rule 205.2 is issued 30 days before the end of the discovery period, the actual response deadline is only “a reasonable time.” As a result, you can often get documents from third parties via subpoena quicker than the normal discovery rules allow. Moreover, since you already have to give the 10-day notice, setting your deadline for production for a week or two after service of the subpoena should give the responding party plenty of time to respond. See Rule 205.3.
Finance Code: Subpoenas to banks require a little more leg-work. Texas Finance Code Section 59.006 is the exclusive method for obtaining customer bank records from a financial institution in litigation (see also Tex. Civ. Prac. Rem. Code§ 30.007, directing civil litigators to follow section 59.006). Under Section 59.006:
- A bank at least 24 days to respond after service.
- The subpoenaing party is required to pay the bank’s “reasonable costs of complying with the record requests.” This includes costs of copies, shipping, delivery and attorneys’ fees. Banks handle this provision differently. Some will require a small retainer before compliance, while others will merely send you an invoice.
- If the records sought are for a bank customer who is a non-party, also requires the requestor: (i) notify the non-party customer and inform them of their rights; (ii) file a certificate of service demonstrating the non-party was given notice; and (iii) request the non-party’s written consent authorizing production.
Objections and Motions for Protection: There is often confusion among practitioners regarding when a subpoenaed subject must respond, serve written objections or file a motion for protection. Is it three days from service? Is it within the 10-day notice period? Like many things, the answer is, of course, it depends. If the subpoena compels production of documents and a deposition, you can file a motion to quash within three days under Rule 199.4, which delays compliance until court order. However, a third party subpoenaed to produce only documents need only respond with written objections (or a motion for protection) before the time specified for compliance. Notably, the subpoenaed party (or any person affected) can file a motion for protection before the time specified for compliance. See Rule 176.6.
Rule 176 Subpoenas are powerful tools when used properly. Following these tips and tricks may not guarantee you get the documents or depositions you want, but hopefully they will help you avoid procedural headaches and unnecessary delays.
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