Subpoenas To Non-Parties: A Few Ground Rules

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If you are in NC state court and want to take the deposition of an out-of-state non-party, the Order last week in Out of the Box Developers, LLC v. Logicbit Corp. carries a few lessons.

Serving A Subpoena.  You can't serve a subpoena on a non-party through their counsel unless they are authorized to accept service. That's true even if counsel has appeared in the case. Only parties can be served through their counsel of record, per Rule 5(b) of the Rules of Civil Procedure

The subpoena at issue in Out of the Box was directed to LexisNexis, which is based in Massachusetts. LexisNexis had appeared in the case to move to quash an earlier subpoena, so the party serving the new subpoena apparently thought it was valid to serve its North Carolina counsel.

Place Of Deposition. The subpoena called for LexisNexis to present its witness in North Carolina. Judge Gale ruled that LexisNexis could not be required to send its witness to North Carolina. He relied on a Business Court ruling of six years ago that:

the existence of personal jurisdiction over a non-party foreign corporation, standing alone, is insufficient to extend the Court's subpoena power to that corporation for purposes of a deposition or the production of documents.

AARP v. American Family Prepaid Legal Corp., 2007 NCBC 4 (February 23, 2007).

30(b)(6) Deposition Topics. The last lesson of Out of the Box is that when Rule of Civil Procedure 30(b)(6) says that the topics on which a corporation is to designate a witness must be stated with "reasonable particularity," it really means it. The Defendant framed its topics in an expansively broad way, like the name of the software product at issue "in the broadest sense and including any and all conceivable topics." Judge Gale found the subjects identified to be too broad, and recast them in his own terms.