united-states evidence civil-procedure
What is the scope for third party subpoenas in civil litigation?
<p>Are third party subpoena's of large organizations allowed in civil litigation?</p>
<p>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?</p>

<p>A party may subpoena materials from a nonparty using a subpoena under <a href="https://www.law.cornell.edu/rules/frcp/rule_45" rel="noreferrer">Rule 45</a>.</p>
<p>A party may generally subpoena anything that is within the scope of discovery under Rule 26, i.e., any material that is <a href="https://www.law.cornell.edu/wex/relevant#:%7E:text=Relevant%20means%2C%20with%20regards%20to,fact%20significant%20to%20the%20case." rel="noreferrer">relevant</a>, not <a href="https://www.law.cornell.edu/wex/privilege" rel="noreferrer">privileged</a>, and <a href="https://www.americanbar.org/groups/litigation/committees/pretrial-practice-discovery/practice/2019/proportionality-has-some-bite/" rel="noreferrer">proportional to the needs of the case</a>.</p>
<p>Rule 45 also protects third parties from subpoenas that impose an &quot;undue burden,&quot; but I would argue that this is essentially the same thing as Rule 26's proportionality requirement.</p>
<p>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.</p>
<p>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 <a href="https://www.law.cornell.edu/uscode/text/18/2701" rel="noreferrer">Stored Communications Act</a>.</p>
