In both California state court cases and federal cases, a non-party must be personally served with a subpoena to secure his or her attendance and production of documents at a deposition. In California state cases, you simply personally serve the non-party once with a deposition subpoena (Judicial Council Form SUBP-020 for testimony and production of documents) and serve a copy on all other parties.

In federal cases, however, taking the deposition of a non-party with production of documents is a two-step process.

First, notice of any commanded document production must be served on each party before the subpoena is served on the deponent (thus affording each party time to object to production). (FRCP 45(b)(1).) To afford adequate time for objection, notice must be given well in advance of the production date.

In Vondersaar v. Starbucks Corp.  WL 1915746, **2-3 (N.D. Cal. 2013), the District Court for the Central District of California found that a deposing party violated the plain language of Rule 45(b)(1) by failing to serve a notice of the subpoenas on defendant Starbucks prior to serving the subpoenas on the deponents. When such a violation occurs, “[c]ourts generally respond to Rule 45(b)(1) violations by striking the subpoenas, or allowing opposing counsel an opportunity to object.” (McCurdy v. Wedgewood Capital Mgmt. Co., Inc., CIV. A. 97–4304, 1998 WL 964185, at *7 (E.D. Pa. Nov. 16, 1998) (citations omitted).) However, the court in Vondersaar declined to quash the subpoena, finding that Starbucks had suffered no prejudice from the violation of Rule 45(b)(1) because: (1) it was served notice of the subpoenas only a few days after the service of the subpoenas on the third parties, (2) defendants still had ample time to object to the subpoena before the production date, and (3) the deponents had filed their own objection, so no harm occurred from the delay of the notice. (Vondersaar, supra, WL 1915746 at **2 -3.)

Thus, while FRCP 45(b)(1) requires that you serve a notice of deposition for attendance and production of documents on all parties before you serve the deposition subpoena on the deponent, a court is unlikely to quash the deposition subpoena unless the violation causes prejudice.