Making Non-Party Discovery Work

Here's a short list of tips for ensuring that you don't have to make a routine practice of seeking to hold non-parties in contempt for not responding to discovery requests.

1. Call the non-party beforehand and explain what you are about to do.

Even a monkey could figure out why this is important.

2. Use a law enforcement official to serve the subpoena on normal folks.

In Texas, anyone over 18 that is not a party can serve a subpoena in a civil case. If you're serving an engineer or a doctor, chances are they know what it is and that they're suppose to take it seriously. If you're serving an 22-year-old overnight stocker at a grocery store, they've probably never seen a subpoena before and may very well throw it in the trash if some 18-year-old runner hands it to them. The authority of the "badge" works wonders.

3. Write the document request or deposition notice in a way that tells a normal person what to do.

If you want to the recipient to do the job right, tell him or her step-by-step what to do and explain the process in a way that's conducive to someone who's probably worried about getting sued. Whatever you do, don't just cut-and-paste a form book non-party discovery request--I've seen better command of the English language on a restroom door. I've found using headings like a FAQ webpage works well:

I. Have I been Sued?
II. What Right do You have to Request Information from Me?
III. Will I be Paid for My Time and Effort?
IV. When Do I Need to Respond?
V. How Do I Need to Respond?

You get the idea.

4. Call the non-party after the subpoena is served and arrange for document pick-up or deposition logistics.

Establishing a level of comfort or respect with the witness is crucial for avoiding a courthouse contempt hearing. So is making sure the witness knows where to go, what to bring, and when he or she will be able to pick up the reimbursement check.