Subpoena vs Motion to Compel

Question

Are there clear rules on when to use subpoenas for discovery as opposed to requests? E.g., is it correct that subpoenas are supposed to be served for discovery from third parties to a legal action, whereas discovery on a counterparty is supposed to be through requests?

My current understanding of custom is that a plaintiff should use requests to begin discovery – Requests for Production (RFPs), written interrogatories (IROGs), etc. When the counterparty objects to these the parties are supposed to "meet and confer" to try to agree on discovery. Only then is it considered proper for the plaintiff to file a Motion to Compel. Is my understanding so far correct?

If a Motion to Compel a response is granted then isn't it legally equivalent to a subpoena? If not what are the differences?

And if everything so far is correct then isn't it weird that the more "compelling" process is used immediately on third parties and not on the direct adversary?

Answer 1

In a civil action: If you are serving written discovery on a party, under the federal rules of civil procedure, or in any state whose adopted the model rules, (rules 33-37 typically), you need only send your requests for interrogatories, the production of documents, or for admissions to the party (through their counsel unless they are pro se), accompanied by the discovery notice, detailing the time frame in which they are due. It is typical that this time frame will get extended, sometimes by double or triple the original 21 day period plus 3-5 days for mailing.

When the party is represented (this is 99% of the time) the attorney will just call you or email you for an extension and it is pro forma to assent to this. The court will not be happy if they need to seek permission of the court for this because you refused, as it is that common, and you will just get a reputation as a non-cooperative pain (not to mention, the time will come when you need an extension, and what comes around goes around). If they seek an unreasonable amount of time (I'm talking so close to the discovery cut off that you'd not have time for depositions after receipt), then you can limit it, but a couple of months is common. This need not go through the court. If they are not represented, they may just be late rather than calling, in which case you have a duty to contact them before involving the court. This is just because they don't know it is the norm, and it is nearly impossible to pull together everything needed from a full set of discovery in 21 days.

When there is a true discovery dispute, you must show the court that you made all due diligent efforts to resolve it on your own. I don't have my rules in front of me (I will edit and add this when I do) ... but this is in the rules, it is not just practically speaking. Also, many jurisdictions require that you contact the court's clerk and get permission before filing any discovery motions. Sending a subpoena is not ever how this is dealt with. If the opposing party fails to respond, or if they are continually late and despite numerous contacts they still do not produce, then you would schedule a discovery conference with the court at which time you will seek a motion to compel. The court will typically give them even more time at this point.

You are correct in that when a third-party is served with discovery request, since they have no obligation to take part in the case but for the presence of a subpoena; hence, in this situation you would use a subpoena to request whatever it is you are requesting. They may get their own lawyer who will try to limit your right to get anything from them as a non-essential party, but if it is really relevant you can do it. You would also use the subpoena for depositions, to ensure that witnesses present themselves. Otherwise, subpoenas are reserved for acquiring witnesses to appear in court or for custodians of records to bring records to court for hearings or trial.

Answer 2

E.g., is it correct that subpoenas are supposed to be served for discovery from third parties to a legal action, whereas discovery on a counterparty is supposed to be through requests?

Generally yes (except that a counterparty can be subject to a subpoena to testify at trial in a civil action).

My current understanding of custom is that a plaintiff should use requests to begin discovery – Requests for Production (RFPs), written interrogatories (IROGs), etc. When the counterparty objects to these the parties are supposed to "meet and confer" to try to agree on discovery. Only then is it considered proper for the plaintiff to file a Motion to Compel. Is my understanding so far correct?

This is generally correct (requests to admit that aren't answered are self-executing).

If a Motion to Compel a response is granted then isn't it legally equivalent to a subpoena? If not what are the differences?

No. A variety of sanctions can be imposed in response to a Motion to Compel (e.g. disallowing a claim or a defense in the case). In the case of a subpoena, usually the only sanction for non-compliance is to hold the person subject to the subpoena in contempt of court until such time as they comply with it (most often by arresting and detaining the person until they comply or the case is over).

And if everything so far is correct then isn't it weird that the more "compelling" process is used immediately on third parties and not on the direct adversary?

No. It is a question of possible responses. There are lots of ways short of incarceration that someone seeking relief or protection from someone else's request for relief can be penalized in a civil action. In contrast, a third-party (almost by definition) often has little to gain or lose in the litigation itself, so remedies for non-compliance linked to the litigation itself aren't available.

Answer 3

I am assuming Federal Rules here; I am not sure about state courts.

There are not clear rules. One court that confronted the issue found that "district courts that have addressed this issue... have taken conflicting positions" and also noted that leading treatises are also in disagreement. See Mortgage Information Services, Inc. v. Kitchens 210 F.R.D. 562 (W.D.N.C. 2002). I won't go into the details of that opinion but suffice it to say that some courts read into Rule 45 the limitation to non-parties.

Hasbro, Inc. v. Serafino 168 F.R.D. 99 (D. Mass. 1996) is a really interesting case given your question because it addresses Rule 45 and 34 but then applies the Rule 37 meet and confer requirement to a Rule 45 subpoena.

Rule 37 (a)(1) On notice to other parties and all affected persons, a party may move for an order compelling disclosure or discovery. The motion must include a certification that the movant has in good faith conferred or attempted to confer with the person or party failing to make disclosure or discovery in an effort to obtain it without court action.

The Hasbro opinion regards a motion to compel filed by the defendant. The motion attempts to compel the production of document which were requested via subpoena. The court held that subpoenas are not the method for requesting discovery from parties but did not sua sponte quash the subpoena (and there was no motion to quash). Ultimately the court held that the motion was premature because defendant did not comply with local and federal rules about meet and confer.

The correction I would make to your summary, [w]hen the counterparty objects to these the parties are supposed to "meet and confer" to try to agree on discovery, is that some objections are valid and do not lead to further dispute. It's also possible that a dispute might arise in the absence of objections; for example when a party lodges no objections and attests that production is complete but the requesting party still wants more. In other words, the unhappy party cannot run to the judge - they must try to work it out on their own.

As for the reasoning I'd say that judges really want parties to cooperate in discovery. This has become so obvious over the last few years that I don't feel the need to cite this. This is why the bigger hammer is not used as the first tool.