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By Lindsey P. Bruning
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Discovery of information is one of the most important aspects of litigation — it allows both parties to identify the facts that support their claims or defenses. Because of this, some of the largest battles an attorney faces in litigation involve discovery.

With parties refusing to disclose information they claim is privileged or simply “irrelevant,” e-discovery, motions to quash, motions to compel, and motions for sanctions, half the battle can be simply obtaining the information needed to prosecute or defend your case.

Most often, the focus of discovery is obtaining information directly from an opposing party. However, the adversarial process can make this task difficult and more expensive than it needs to be. Often other paths exist to obtain some of the needed information — paths outside the party lines.

For example, suppose a party to an insurance dispute needs information regarding preexisting roof damage and/or prior claims regarding that damage. If the insured delays in providing it or contends that they don’t have it, one option might be to request the information via nonparty subpoenas directed at a previous insurer or the roofers who submitted bids to estimate or repair prior damage.

Nonparty discovery allows parties to go straight to the source — requesting the same information from someone with no skin in the game. Nonparty subpoenas are a frequently overlooked and underutilized avenue to obtain information. Use of a nonparty subpoena requires knowledge of nonparty discovery rules and/or methodology. This requires attention to detail. And, because the rules are not clear cut, it is not always as simple as it should be.

Texas Rule of Civil Procedure 205 governs discovery from nonparties in state court.[1] It is broken down into three sections, each warranting its own discussion:

Rule 205.1 is titled “Forms of Discovery; Subpoena Requirement.” It provides as follows:

A party may compel discovery from a nonparty — that is, a person who is not a party or subject to a party’s control — only by obtaining a court order under Rules 196.7, 202 or 204, or by serving a subpoena compelling:

(a) an oral deposition;

(b) a deposition on written questions; 

(c) a request for production of documents or tangible things, pursuant to Rule 199.2(b)(5) or Rule 200.1(b), served with a notice of deposition on oral examination or written questions; and

(d) a request for production of documents and tangible things under this rule.

If a practitioner fails to cross-reference Rules 196.7, 202 and 204, it appears a party may be required to file a motion in order to obtain discovery from nonparties. But when you review Rules 196.7, 202 and 204, it is clear that generally, no motion/court order is necessary to obtain typical discovery from a nonparty during ongoing litigation.

A court order is only required if a party seeks a presuit deposition of a nonparty,[2] a physical or mental examination of a nonparty,[3] or entry on a nonparty’s land.[4] For a simple request for documents or a deposition (oral or by written questions), only a notice and subpoena under Rule 205 are required.

Rule 205.2 is titled “Notice” and provides as follows:

205.2. Notice

A party seeking discovery by subpoena from a nonparty must serve, on the nonparty and all parties, a copy of the form of notice required under the rules governing the applicable form of discovery. A notice of oral or written deposition must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. A notice to produce documents or tangible things under Rule 205.3 must be served at least 10 days before the subpoena compelling production is served.

This section is possibly the most overlooked. Or maybe it is just confusing. Either way, there are a few things to remember from this section:

(1) You must serve a notice (of the deposition and/or document request) and a subpoena;

(2) Both documents must be served on the nonparty (obviously) and all parties to the litigation; and

(3) If you are only requesting documents, the notice must be served at least 10 days before the subpoena is served.

Stated another way — serve the notice of subpoena requesting documents; then 10 days later, serve the subpoena requesting the documents.[5]

If you are noticing a deposition and requesting documents, you do not need to send the notice 10 days prior to issuing the subpoena. The rule provides that a deposition notice must be served before or at the same time that a subpoena compelling attendance or production under the notice is served. But the deposition notice itself must be served timely under Rule 205.3, discussed below.

The notice requirement is important. It is the Legislature’s way of ensuring the opposing party (or the nonparty if he so wishes) has time to object to the nonparty discovery.

Rule 205.3, titled “Production of Documents and Tangible Things Without Deposition,” outlines the time to serve the notice/subpoena and the contents required in the notice. It provides as follows:

(a) Notice; Subpoena. A party may compel production of documents and tangible things from a nonparty by serving — a reasonable time before the response is due but no later than 30 days before the end of any applicable discovery period — the notice required in Rule 205.2 and a subpoena compelling production or inspection of documents or tangible things. 

(b) Contents of Notice. The notice must state:

(1) the name of the person from whom production or inspection is sought to be compelled;

(2) a reasonable time and place for the production or inspection; and

(3) the items to be produced or inspected, either by individual item or by category, describing each item and category with reasonable particularity, and, if applicable, describing the desired testing and sampling with sufficient specificity to inform the nonparty of the means, manner and procedure for testing or sampling.

(c) Requests for Production of Medical or Mental Health Records of Other Nonparties. If a party requests a nonparty to produce medical or mental health records of another nonparty, the requesting party must serve the nonparty whose records are sought with the notice required under this rule. This requirement does not apply under the circumstances set forth in Rule 196.1(c)(2).

(d) Response. The nonparty must respond to the notice and subpoena in accordance with Rule 176.6.

(e) Custody, Inspection and Copying. The party obtaining the production must make all materials produced available for inspection by any other party on reasonable notice, and must furnish copies to any party who requests at that party’s expense.

(f) Cost of Production. A party requiring production of documents by a nonparty must reimburse the nonparty’s reasonable costs of production.

This section is fairly self-explanatory. Simply be aware that the notice and subpoena must be served a reasonable time before the response is due. Accordingly, unlike with discovery to opposing parties, you do not have to give the nonparty 30 days to respond; the only requirement is that the time to respond be “reasonable.” A couple of caveats:

• There is a 10-day notice requirement for requests for documents only (see discussion above).

• In addition to Rule 205, remember there may be other rules with which you must comply. Rule 200.1 governs all depositions by written questions, so compliance is required when you request a deposition by written questions from a nonparty.[6] Rule 200.1 has a temporal requirement that applies, stating that the notice of a deposition by written questions must be served on the witness and all parties at least 20 days before the deposition is taken (i.e., the date the deponent must sign and notarize the deposition by written questions).

Other important rules requiring compliance when issuing nonparty discovery:

Rule 191.4 requires that “discovery requests, deposition notices and subpoenas” on nonparties be filed with the court.[7] If you practice in both federal and state courts, this may come as a surprise to you as the federal rules contain no such requirement.

Depositions by written questions under Rule 200 are most often used to obtain records from a nonparty while also asking the custodian of records questions necessary to authenticate them. Alternatively, records may be authenticated through the execution of a business records affidavit under Texas Rule of Evidence 902(10). Either method is sufficient for authentication of evidence intended for use in summary judgment or trial under Texas Rule of Evidence 902(10).

With regard to oral depositions, you must select a place for the oral deposition that complies with Rule 199.2(2) — for nonparties, the county where the witness resides, the county where the witness is employed or regularly transacts business in person, or the county where the witness was served or within 150 miles of the place of service.[8]

Having issued and responded to numerous nonparty subpoenas in recent months, I have found them to be an abundant source of relevant information. Don’t overlook going “outside the party lines” as part of your discovery strategy, particularly where the party lines are heavily defended.

—By Lindsey P. Bruning, Zelle Hofmann Voelbel & Mason LLP

Lindsey Bruning is a senior associate in Zelle Hofmann's Dallas office.

The opinions expressed are those of the author(s) and do not necessarily reflect the views of the firm, its clients, or Portfolio Media Inc., or any of its or their respective affiliates.

This article is for general information purposes and is not intended to be and should not be taken as legal advice.

[1] Unfortunately, I do not have the space to discuss the nuances regarding nonparty discovery under the Federal Rules. Another time, perhaps?

[2] Tex. R. Civ. P. 202.

[3] Tex. R. Civ. P. 204.

[4] Tex. R. Civ. P. 196.7.

[5] The process server you use should know this, and often does it without your instruction.    [6] Tex. R. Civ. P. 200.1(a).

[7] Tex. R. Civ. P. 191.4(b)(4)

[8] Tex. R. Civ. P. 199.2(2)(A)-(E)