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Are third party subpoena's of large organizations allowed in civil litigation?

For example, if there is a lawsuit over a business deal, can one or more of the parties subpoena phone records such as emails and text messages from a phone company or an email provider? Also, what about internet service providers such as Google and Facebook? For example, if there is say a defamation lawsuit about something posted to Facebook, can the plaintiff subpoena Facebook to get records concerning when and what things were posted there?

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A party may subpoena materials from a nonparty using a subpoena under Rule 45.

A party may generally subpoena anything that is within the scope of discovery under Rule 26, i.e., any material that is relevant, not privileged, and proportional to the needs of the case.

Rule 45 also protects third parties from subpoenas that impose an "undue burden," but I would argue that this is essentially the same thing as Rule 26's proportionality requirement.

Records of phone calls, e-mails, and text messages are routinely subject to subpoenas under Rule 45, but again, that assumes that the messages are relevant and not privileged.

Records to Facebook and Google can be a bit more complicated. I don't know that the question has actually been definitively answered, but social-media companies seem to take the position that access to certain records created by their users is exempt from subpoena under the Stored Communications Act.

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  • I would suggest that social media companies lose more contests of subpoenas than they win on that ground.
    – ohwilleke
    Commented Nov 28, 2022 at 12:01
  • This is excellent news. If you've seen any good cases analyzing the weaknesses in that objection, I'd love to see them.
    – bdb484
    Commented Nov 28, 2022 at 23:09

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