USA Law and Practice Contributed by: Steven Molo, Robert Kry, Megan Cunniff Church and Walter Hawes, MoloLamken
will quash or modify a subpoena to a non-party if it imposes an undue burden or expense. Whether a subpoena imposes an undue burden is decided on a case-by-case basis and involves a number of factors, including: • the relevance of the requested information; • the requesting party’s need for the docu - ments; • the breadth of the request; • the time period covered by the request; • the particularity with which the documents are described; • the burden imposed; and • the recipient’s status as a non-party. Although the court considers all of these factors in determining whether a subpoena is overly bur - densome, successful challenges to a subpoena often focus on the breadth of the request. In requesting documents from a third party, it is therefore advisable to narrowly tailor the request so it is not quashed or modified on grounds of overbreadth. In many cases, a protective order will govern how documents may be used and with whom they may be shared. Typically, those orders limit the use of documents to the litigation at issue, although they may also permit use of the docu - ments in related foreign proceedings. Pre-Litigation Discovery Under Federal Rule of Civil Procedure 27, before an action is filed, a party may petition the court to “perpetuate testimony about any matter” . The petition must show: • that the petitioner expects to be a party to litigation but cannot presently bring such an action;
• that the court in which the petition is filed has jurisdiction over the possible action; • the facts the petitioner hopes to establish by the proposed testimony and the reasons to perpetuate it; • the names and addresses of whom the peti - tioner expects to be adverse parties; and • the name, address and expected substance of the testimony of each deponent. Because the primary purpose of Rule 27 is to preserve evidence that is otherwise likely to be lost, most courts have not permitted Rule 27 to be used as a fact-finding tool. Many states also have pre-litigation discovery rules, some of which are broader or narrower than the federal rule. In New York, CPLR Rule 3102(c) provides that, before an action is com - menced, disclosure to aid in bringing an action or to preserve information may be obtained by court order. Despite the seemingly broad lan - guage, courts in New York have interpreted the rule narrowly to allow for discovery only where a putative plaintiff needs to obtain the identity of a necessary party or where pre-litigation discovery is needed to preserve evidence. New York courts have rejected pre-litigation discovery where it was sought to uncover proof of an intended cause of action or to determine if that cause of action might exist. 2.4 Procedural Orders In general, motions made without notice to an adverse party are disfavoured, and are appropri - ate only in a narrow set of circumstances. These include instances of urgency, such as where immediate and irreparable loss will result before the adverse party can be heard to oppose a motion, or where there is a danger that notice to an adverse party will result in that party’s flight,
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