Case 1:20-cv-10832-AT-SN Document 234 Filed 06/08/21 Page 1 of 8

June 8, 2021

VIA ECF
Hon. Analisa Torres
United States District Court
Southern District of New York
500 Pearl Street
New York, NY 10007

Re: SEC v. Ripple Labs, Inc. et al., No. 20-cv-10832 (AT) (SN) (S.D.N.Y.)

Dear Judge Torres:

We write on behalf of Defendant Ripple Labs, Inc. (“Ripple”) in opposition to the SEC’s
letter dated June 2, 2021 (“SEC Letter,” ECF No. 217). The SEC’s request for a 60-day
extension of discovery should be denied.

The SEC’s letter misstates the reasons for Ripple’s opposition to extending discovery.
Ripple opposes this extension because delay will be extremely prejudicial to Ripple and because
there is not good cause to modify the discovery schedule.1

I. An Extension of Discovery Will Unduly Prejudice Ripple’s Business

Delay in this litigation poses an existential threat to Ripple’s business in the United
States. The Court can deny the SEC’s request on that basis alone. See, e.g., Dumann Realty,
LLC v. Faust, , 2011 WL 2749523, at *2 (S.D.N.Y. July 8, 2011) (“[A] district court ‘also may
consider . . . whether allowing the [modification of a schedule] at this stage of the litigation will
prejudice defendants.’ ”) (second brackets in original) (quoting Kassner v. 2nd Ave. Delicatessen

1
The SEC incorrectly asserts (at 1) that “Defendants do not consent to the SEC’s request because they contend that
the SEC had sufficient time to investigate this matter before filing suit, and because Ripple wants to move for
summary judgment as soon as possible.” It is true that the SEC had ample time to investigate before filing suit, but
Defendants do not argue that the SEC’s investigation means it is not entitled to further discovery. The SEC’s two
and a half year investigation does, however, mean that the SEC knew well in advance what further facts it needed to
develop, which supports Ripple’s argument that the SEC failed to act diligently when it unreasonably delayed its
discovery requests (as described below). It is also true — as Ripple made clear in the initial Rule 16 letter — that
Ripple wants to move for summary judgment as soon as possible, but this is not an arbitrary preference for speed.
As described in greater detail below, the pendency of this litigation itself poses a grave threat to Ripple’s ability to
continue operating in the United States.
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Hon. Analisa Torres

June 8, 2021
Page 2
Inc., 496 F.3d 229, 244 (2d Cir. 2007)); see also SEC Letter at 3 (conceding that extension is
proper only “[i]f [t]he [o]pposing [p]arty [w]ill [n]ot [b]e [u]nfairly [p]rejudiced”).

As the SEC alleges in its complaint, Ripple’s current primary line of business is cross-
border payments and related activities. See ECF No. 46 ¶ 359. Sending money internationally
has traditionally been slow and expensive.2 Ripple’s On-Demand Liquidity (“ODL”) product
solves this problem by using XRP as a bridge currency: the sender can buy XRP in one local
currency and transfer the XRP to the recipient, who can sell that XRP in another local currency,
in a process taking seconds rather than days. As the SEC itself describes this solution:

ODL involves a transaction in which a money transmitter in a sender’s

jurisdiction converts fiat currency into XRP, transfers the XRP to a recipient’s
jurisdiction, and converts the XRP into the fiat currency of that locale. Typically,
instead of holding XRP directly, money transmitters who may use ODL would
rely on market makers in the sender’s and recipient’s jurisdictions to trade in and
out of XRP in about ninety seconds or less.

Id. ¶ 360.

Crucially, for ODL to work efficiently, there must be a liquid market for XRP in both the
sending and receiving countries. But the pendency of this lawsuit has significantly hurt the
markets for XRP in the United States and abroad. Within days of the SEC’s filing, almost 20
exchanges de-listed or suspended XRP.3 More have subsequently followed suit. Today, XRP is
essentially illiquid in the United States, practically eliminating the possibility of ODL transfers
into or out of the United States. XRP’s liquidity has also been hampered in other jurisdictions,
damaging Ripple’s ability to develop and market ODL worldwide. Every additional day this suit
is pending is a day in which the XRP markets remain improperly frozen in the United States and
Ripple’s business is unfairly hampered. This is severely prejudicial to Ripple, and the SEC’s
extension motion does not even mention it, much less explain why the proposed delay would not
harm Ripple. The Court can, and should, deny the SEC’s motion on this basis alone.

II. The SEC Has Not Shown Good Cause To Extend Discovery

Even putting aside the prejudice that a discovery extension would cause Defendants, the
SEC’s request should be denied because it has not shown good cause to modify the scheduling
order, as required under Fed. R. Civ. P. 16. See, e.g., iMedicor, Inc. v. Access Pharms., Inc., 290
F.R.D. 50, 52 (S.D.N.Y. 2013) (“[P]laintiff must demonstrate good cause for modifying the
scheduling order under Rule 16(b).”). “ [A] finding of good cause depends on the diligence of
the moving party . . . meaning that despite its having exercised diligence, the applicable deadline

2
In general terms, a person sending money abroad must rely on a chain of two or more “correspondent banks,” each
of which may charge a substantial fee. It can take as long as a week for the money to reach the recipient’s bank.
3
See, e.g., Will XRP Survive The SEC’s Charges Against Ripple As XRP Is Delisted From Numerous Exchanges?,
Liquidity Finder (Jan. 6, 2021), https://www.liquidityfinder.com/news/Will-XRP-survive-the-SEC%E2%80%99s-
Charges-against-Ripple-as-XRP-is-delisted-from-numerous-exchanges?id=ckjlpgo6p978t0a12363snngu.
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Hon. Analisa Torres

June 8, 2021
Page 3
could not have been reasonably met.” Id. (internal quotation marks and citations omitted); see
also SEC v. Lek Sec. Corp., 2019 WL 3729386, at *4 (S.D.N.Y. Aug. 7, 2019) (“In determining
whether good cause exists to modify a scheduling order, ‘the primary consideration is whether
the moving party can demonstrate diligence.’ ”) (quoting Kassner, 496 F.3d at 244).

The SEC’s primary argument for an extension (at 2-3) is that “[a]ll [p]arties [h]ave
[e]xpended [s]ignificant [t]ime [o]n [m]otions [p]ractice.” It does not and cannot argue that this
motion practice somehow prevented it from timely meeting the discovery deadlines. Indeed, the
efforts expended on motions practice to date cut against an extension of discovery. See Sokol
Holdings, Inc. v. BMB Munai, Inc., 2009 WL 3467756, at *3 (S.D.N.Y. Oct. 28, 2009) (finding
no good cause for extension where, among other things, “the parties engaged in extensive legal
briefing and substantial discovery” that would be near completion unless the court permitted
extension). Magistrate Judge Netburn has carefully overseen discovery and promptly resolved
issues presented to her.

To the extent the SEC attempts to argue that motions practice has interfered with its
ability to conduct discovery, the SEC ignores that the substantial bulk of this motions practice
was of its own (improper) making. For example, the Court denied SEC’s motion incorrectly
arguing that Ripple’s fair notice argument waives attorney-client privilege. See, e.g., ECF Nos.
165, 166, 174, 195, 196, 210. The Court also granted motions by individual defendants Bradley
Garlinghouse and Christian Larsen to quash overbroad SEC subpoenas for personal financial
records. ECF Nos. 59, 72, 87, 103. Most egregiously, the Court has now twice ordered the SEC
to produce non-privileged SEC documents after the SEC improperly refused to do so. ECF Nos.
67, 78, 79, 80, 102, 126, 142, 149, 163. Yet the SEC still has not produced many of the
documents the Court ordered it to produce, and Defendants have sought the Court’s assistance
for a third time on this issue. See ECF No. 220. The SEC nonetheless asks this Court to extend
the discovery deadlines based, inter alia, on the fact that Defendants “have raised a number of
concerns regarding the SEC’s review and production of internal documents and communications
responsive to Judge Netburn’s April 6, 2021 order.” SEC Letter at 1. The SEC cannot rely on
the fact that it has taken improper, overreaching positions requiring judicial intervention, and
then refused to comply with direct Court orders, to argue that it needs more time for discovery.

The SEC (at 4-6) offers five additional arguments in support of its application. None has
merit and none justifies an extension of the schedule, individually or collectively. 4

4
The SEC relies extensively on a five-factor test set out in City of Almaty, Kazahkstan v. Ablyazov, 2018 WL
2148430, at *1 (S.D.N.Y. May 10, 2018). The court in Almaty, however, created that five-factor test out of whole
cloth, without citation to any authority, and it did not even acknowledge the controlling “good cause” standard under
Fed. R. Civ. P. 16(b). To date, no other court has adopted Almaty’s five-factor test, and this Court should not be the
first. But in any event, even if the Almaty test applied, the arguments the SEC raises (at 4-6) are insufficient to
support an extension, for the reasons explained below.
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Hon. Analisa Torres

June 8, 2021
Page 4
A. Discovery Already Conducted

There is no dispute that discovery in this litigation has been extensive. That does not
support a conclusion that the SEC has been diligent. To the contrary, the SEC has delayed in
serving a substantial portion of its discovery requests to Defendants. For example, the SEC
represents (at 4) that it “sought the production of documents from defendants . . . within a few
weeks of the beginning of the discovery period.” But in fact, the SEC is still serving requests for
production on Defendants: on May 20 and June 4, it served a total of 16 new requests for
production. It offers no explanation for the delay, and it does not and cannot contend that the
documents sought in these belated requests are ones it did not learn about until discovery. See,
e.g., Rent-A-Center, Inc. v. 47 Mamaroneck Ave. Corp., 215 F.R.D. 100, 104 (S.D.N.Y. 2003)
(finding no good cause to extend schedule based on amendment to the pleadings because
information supporting proposed new claim was known long before party sought to amend).5

B. Additional Discovery Sought

The SEC argues (at 4) that it needs more time for discovery because “Ripple’s production
of documents is not complete.” The SEC cannot show good cause to justify an extension on this
basis. As noted above, the SEC has continued to serve document requests in May and June;
Ripple’s productions to the most recent requests are not even due yet. As for the SEC’s prior
requests to Ripple alone, which number 107 in all, Ripple has diligently produced over 73,000
documents, and has committed to completing production of documents for requests received
through May 19 by June 18. All of this is on top of the roughly 49,000 documents that Ripple
produced in the course of the investigation.

Similarly, the SEC argues (at 4) that “for both depositions so far, [Ripple] has produced
documents relevant to those witnesses only 2-3 business days before the deposition date.” Once
again, the SEC ignores that these productions were due to its belated service of document
requests. The first deposition in this case took place on May 18. The SEC waited until as late as
May 8 to request certain documents relating to that deponent. See Ex. A (“[W]e request that
Ripple produce responsive, non-privileged Telegram communications in advance of her
deposition.”).6 The second deposition took place on May 26; the SEC waited until May 3 before
serving a subpoena for that witness’s documents. See Ex. B. Despite the SEC’s late requests,
Ripple took great pains to accelerate production and ensured that the SEC had them well in
advance of the depositions (and far in advance of the deadline for production). See, e.g., Joye v.
Psch, Inc., 2016 WL 3141659, at *6 (S.D.N.Y. June 3, 2016) (finding no “good cause” to extend
discovery to accommodate late-served document requests, because “plaintiff’s counsel does not
explain why these documents could not have been requested prior to [the] deposition”). Ripple
has also committed to getting the SEC the documents relevant to future depositions one week in

5
While the proposed extension in Rent-A-Center was due to a requested amendment to the pleadings rather than a
direct request to extend the scheduling order itself, the Second Circuit has explained that the same “good cause”
standard under Rule 16(b) applies to both types of extensions. See Kassner, 496 F.3d at 243-44.
6
Ripple expended significant efforts to ensure that those late-requested documents were produced in advance of the
deposition despite the late timing of the request.
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Hon. Analisa Torres

June 8, 2021
Page 5
advance of the deposition and to fully completing production of all but the most recent requests
by June 18 — well in advance of the final depositions.

Next, the SEC argues (at 4-5) that it will not have privilege logs necessary for its
depositions of the Individual Defendants until July 2, which will be too late to use them in those
depositions. This is incorrect. Ripple has already produced six privilege logs (two during the
investigation and four more to date in discovery) reflecting more than 1,800 privileged or
redacted documents, including a privilege log of certain witness documents in advance of the
May 18 deposition. Ripple will produce all remaining privilege logs on a rolling basis starting
on June 18 – including all entries involving witnesses scheduled to be deposed in the two weeks
after that – and anticipates having these logs substantially completed well in advance of the
Individual Defendants’ depositions, which are scheduled for June 30 and July 2.7 Moreover, the
privilege logs are only minimally relevant to the SEC’s case in the first place, given Judge
Netburn’s ruling that Ripple has not waived privilege by asserting a fair notice defense.

The SEC also relies (at 5) on its recently filed (and pending) motion for leave to take
additional depositions. That reliance is misplaced because its motion is substantively flawed, for
the reasons Ripple articulated in its opposition to that motion (ECF No. 216). It is also
premature: there is no reason to extend discovery now based on the possibility that the SEC
might receive leave to take more depositions in the future.

C. “Unavoidable” Obstacles Faced

The SEC’s argument (at 5) that it has engaged in meet-and-confers and has “expended
many hours interviewing custodians and searching and reviewing tens of thousands of internal
documents and communications . . . which Defendants successfully moved to compel” does not
support an extension. Meeting and conferring, and searching for and reviewing documents, is
part of the ordinary discovery process. The fact that the SEC has performed a baseline level of
work that any litigant would have to does not establish that it has been “diligent.” See, e.g.,
Burlington Coat Factory Warehouse Corp. v. Esprit De Corp., 769 F.2d 919, 927 (2d Cir. 1985)
(rejecting as “frivolous” a claim that burden of responding to opposing party’s discovery
requests prevented party from adequately pursuing its own discovery). And, as noted above, the
SEC could have finished these tasks much earlier had it simply produced documents in response
to Defendants’ valid requests for production instead of forcing Defendants to move to compel.
Likewise, the SEC cites (at 5) a disputed privilege assertion that Ripple subsequently withdrew,
but it does not and cannot argue that this brief dispute over a few days in May is somehow
preventing the SEC from completing discovery in accordance with the Court’s scheduling order.

7
There may be a small handful of privilege logs that Ripple produces after these dates, but that is because the SEC
has belatedly served requests for production as late as June 4. The Federal Rules allow Ripple to respond to those
requests by July 2, see Fed. R. Civ. P. 34(b)(2)(A), and Ripple cannot reasonably be required to search for, review,
produce, and create complete privilege logs significantly faster than that. The possibility that some small fraction of
privilege logs relating to these late-served requests may not be received before the Individual Defendants’
depositions is a problem of the SEC’s own making and does not support a finding of good cause.
 Case 1:20-cv-10832-AT-SN Document 234 Filed 06/08/21 Page 6 of 8

Hon. Analisa Torres

June 8, 2021
Page 6
D. “Avoidable” Delays

The SEC cites (at 5-6) three categories of what it calls “avoidable delays.” None show
that the SEC was diligent in discovery and none support its requested extension.

First, the SEC complains that it is still awaiting a production in response to a third-party
subpoena it served on GSR. But the SEC has not moved to compel enforcement of that
subpoena. Cf. Saray Dokum v. Madeni Aksam Sanayi Turizm A.S., 335 F.R.D. 50, 52 (S.D.N.Y.
2020) (holding that party did not act diligently, and thus did not satisfy “good cause”
requirement, where it failed to take steps to compel discovery it later claimed was critical);
Agapito v. AHDS Bagel, LLC, 2018 WL 3216119, at *2 (S.D.N.Y. May 17, 2018) (holding that
party’s failure to produce documents during discovery did not provide “good cause” under Rule
16(b) because “to the extent that [movants] unsuccessfully requested production of these
documents from Plaintiffs, the appropriate response would have been a motion to compel”).

Second, the SEC complains that it has had to serve subpoenas on individual deponents to
obtain documents from their personal electronic devices. But that does not come as a surprise;
Ripple can only produce documents that are in its possession, custody, or control, and the SEC’s
requests for production only asked it to produce such documents. See also Fed. R. Civ. P.
34(a)(1) (parties may serve requests on other parties to produce documents “in the responding
party’s possession, custody, or control”). The SEC could have begun serving these subpoenas at
the start of discovery; indeed, it has known since February that it would need to do so. As
Ripple expressly notified the SEC by letter on February 25, Ripple “is not in a position to collect
mobile device data for custodians who used their own personal devices to engage in work-related
communications.” The SEC makes no attempt to explain its three-month delay in serving
subpoenas after receiving that notice. That unexplained delay is fatal to a claim of diligence.
See Joye, 2016 WL 3141659, at *6.

Third, the SEC complains that Ripple asserted privilege over documents slated to be
produced by third parties. It does not argue that this assertion introduced any material delay in
discovery, nor that it prevented the SEC from timely learning any critical information. And the
SEC concedes that this issue affects only productions by three third parties (out of more than 60
in the case), where Ripple diligently reviewed a relatively small subset of the productions for
privilege, and did so in a matter of days. In each case, those parties’ productions are already
complete. This makeweight complaint again does not justify extending the discovery deadlines.

E. Need For Fair and Efficient Discovery

The SEC concludes (at 6) with a perfunctory assertion that it would not be “fair” to
enforce the existing discovery deadline in this case. It makes no argument that an extension of
discovery would be “efficient”; to the contrary, it would likely increase the burdens on all
parties, in addition to causing the extreme prejudice to Ripple described above. Moreover,
without any showing of particular facts it has been unable to develop to date but could develop if
granted an extension, the SEC also cannot show that an extension would promote “fairness” in
the first place. There is no unfairness in this case that an extension would remedy.
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Hon. Analisa Torres

June 8, 2021
Page 7
F. What the SEC Does Not Argue

Missing from the SEC’s letter is any argument that the existing discovery deadlines
cannot be reasonably met. Without such a showing, the SEC cannot demonstrate good cause for
an extension of the discovery deadline. See, e.g., Rent-A-Center, 215 F.R.D. at 105 (holding that
movants failed to show good cause where they did not “try to explain why the deadline set forth
by the Court’s Scheduling Order could not be reasonably met”); Lincoln v. Potter, 418 F. Supp.
2d 443, 454 (S.D.N.Y. 2006) (same); Baburam v. Fed. Express Corp., 318 F.R.D. 5, 8 (E.D.N.Y.
2016) (“With respect to a request to extend discovery, the moving party must show why it could
not have completed the necessary discovery within the time frame established under the existing
scheduling order.”). To be sure, the SEC’s letter suggests that it will require genuine effort from
all parties to complete discovery – efforts that the SEC itself argues (at 6) the parties have been
making. It offers no reason why the parties cannot continue to make such efforts, and it does not
and cannot argue that it will be impossible to complete discovery on time if the parties do so.

The SEC also makes no argument that it has not been able to develop any particular areas
of fact. To be sure, it identifies certain procedural categories of discovery that are still
outstanding, such as the subpoena to GSR that it has not moved to enforce. But the SEC does
not state that there are any particular facts it expects to be able to develop but has not yet been
able to. It certainly does not argue that it will be impossible to develop sufficient facts by the
close of discovery. Cf. Lamothe v. Town of Oyster Bay, 2011 WL 4974804, at *8 (E.D.N.Y. Oct.
19, 2011) (“Without specific information regarding the new evidence at issue and the timing of
its discovery, the Court is unable to find that the Plaintiffs have demonstrated good cause for
their failure to comply with the Scheduling Order.”).

* * *

An extension of the discovery schedule in this case would cause tremendous prejudice to
Ripple. In addition, the SEC has not met its burden of showing that there is good cause to extend
the schedule: the examples of ongoing discovery issues that it cites are largely attributable to its
own unexplained delays in serving document requests, and it does not and cannot argue that it
will not be possible to complete discovery on the existing schedule despite reasonable diligence.
The SEC’s request for an extension should be denied.
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Hon. Analisa Torres

June 8, 2021
Page 8
Respectfully submitted,

/s/ Michael K. Kellogg /s/ Mary Jo White

Michael K. Kellogg Mary Jo White
(mkellogg@kellogghansen.com) (mjwhite@debevoise.com)
Reid M. Figel Andrew J. Ceresney
Gregory M. Rapawy Lisa Zornberg
Collin R. White Christopher S. Ford
Eliana Margo Pfeffer* Joy Guo
KELLOGG, HANSEN, TODD, FIGEL, DEBEVOISE & PLIMPTON LLP
& FREDERICK PLLC 919 Third Avenue
Sumner Square New York, NY 10022
1615 M Street, NW, Suite 400 +1 (212) 909-6000
Washington, DC 20036
+1 (202) 326-7900

Attorneys for Defendant Ripple Labs Inc.

*Not Admitted in the District of Columbia; practice supervised by members of the firm.

cc: All counsel (via ECF)

Case 1:20-cv-10832-AT-SN Document 234-1 Filed 06/08/21 Page 1 of 2

Exhibit A 
 Case 1:20-cv-10832-AT-SN Document 234-1 Filed 06/08/21 Page 2 of 2

From: Waxman, Daphna A.
To: Guo, Joy; Tenreiro, Jorge; Bliss, Dugan; Daniels, Jon; Stewart, Ladan F; Hanauer, Benjamin J.; Moye, Robert M.
Cc: Ceresney, Andrew J.; Zornberg, Lisa; Cowan, Jennifer R.; Gulay, Erol; Hirsch, Matt; "msolomon@cgsh.com";
"mflumenbaum@paulweiss.com"; ""Bunting, Kristina" (kbunting@paulweiss.com)"; "ajanghorbani@cgsh.com";
Kellogg, Michael K.; Figel, Reid M.; "mgertzman@paulweiss.com"; "slevander@cgsh.com"
Subject: RE: SEC v. Ripple Labs - Meet and Confer Letter
Date: Saturday, May 8, 2021 12:21:10 PM

Joy –
Thank you for confirming that you will produce Breanne Madigan’s responsive, non-privileged Skype
communications in advance of her deposition. Productions from third parties indicate that in
addition to Skype, Ms. Madigan used Telegram to communicate regarding issues related to XRP and
Ripple. See BAMT 001440 and SEC-CSCAPITAL-E-0079141. As such, we request that Ripple produce
responsive, non-privileged Telegram communications in advance of her deposition. Thank you, and
please let us know your response by Tuesday.
Daphna
From: Guo, Joy 
Sent: Friday, May 7, 2021 4:46 PM
To: Tenreiro, Jorge ; Bliss, Dugan ; Waxman, Daphna A. ; Daniels, Jon ; Stewart, Ladan F ; Hanauer,
Benjamin J. ; Moye, Robert M. 
Cc: Ceresney, Andrew J. ; Zornberg, Lisa ; Cowan, Jennifer R. ; Gulay, Erol ; Hirsch, Matt ;
'msolomon@cgsh.com' ; 'mflumenbaum@paulweiss.com' ; ''Bunting, Kristina'
(kbunting@paulweiss.com)' ; 'ajanghorbani@cgsh.com' ; 'mkellogg@kellogghansen.com' ;
'rfigel@kellogghansen.com' ; 'mgertzman@paulweiss.com' ; 'slevander@cgsh.com' 
Subject: SEC v. Ripple Labs - Meet and Confer Letter
CAUTION: This email originated from outside of the organization. Do not click links or open
attachments unless you recognize the sender and know the content is safe.
Counsel – Please see the attached correspondence concerning our most recent meet and confer.
Best,
Joy
Debevoise 
& Plimpton
Debevoise & Plimpton LLP
Joy Guo
Associate
jguo@debevoise.com

www.debevoise.com
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Case 1:20-cv-10832-AT-SN Document 234-2 Filed 06/08/21 Page 1 of 4

Exhibit B
 Case 1:20-cv-10832-AT-SN Document 234-2 Filed 06/08/21 Page 2 of 4

Southern District of New York

✔
 Case 1:20-cv-10832-AT-SN Document 234-2 Filed 06/08/21 Page 3 of 4
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 20 Civ. 10832 (AT)

PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)

I received this subpoena for (name of individual and title, if any)

on (date) .

’ I served the subpoena by delivering a copy to the named person as follows:

on (date) ; or

’ I returned the subpoena unexecuted because:

.

Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
$ .

My fees are $ for travel and $ for services, for a total of $ 0.00 .

I declare under penalty of perjury that this information is true.

Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

 Case 1:20-cv-10832-AT-SN Document 234-2 Filed 06/08/21 Page 4 of 4
AO 88B (Rev. 12/13) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)
Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or
For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).
(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.