Non-Party Discovery Decision Tree

✅ RESULT 1 — Party + Oral Deposition Only

Use this packet: Notice of Oral Deposition.

Because this target is listed in the lawsuit caption, this is a party deposition — not a non-party subpoena situation. A subpoena is not required and is not the correct instrument. Serve the Notice of Oral Deposition on the party’s attorney of record.

✅ RESULT 2 — Party + Documents Only

Use this packet: Request for Production.

Because this target is listed in the lawsuit caption, a Request for Production is the correct and proper instrument — not a subpoena. Do not prepare a subpoena packet for a named party.

Timing rule: Under the Texas Rules of Civil Procedure, a party served with a Request for Production must be given 30 days to respond and produce documents. Count 30 days forward from the date of service. Do not demand production sooner than 30 days unless the court has ordered otherwise.

✅ RESULT 3 — Party + Oral Deposition and Documents

Use these two documents:

1. Notice of Oral Deposition — served on the party’s attorney of record to set the deposition.
2. Serve a Request for Production —

   Because this target is listed in the lawsuit caption, do not use a non-party subpoena packet. The correct instruments are the Notice of Oral Deposition and a Request for Production.

   Timing rule: The party must be given 30 days to respond to the Request for Production. Coordinate the deposition date accordingly so the document production deadline does not fall after the deposition date.

✅ RESULT 4 — Non-Party + Oral Deposition Only

Use this packet: Subpoena for Oral Deposition.

This target is not listed in the lawsuit and is not under the control of a named party. A subpoena is required to compel their appearance.

Texas timing note: For a non-party oral deposition, the notice to the other parties may be served before or at the same time as the subpoena is served on the witness. Count forward from the day this will actually go out — not the day you prepared it.

✅ RESULT 5 — Non-Party + Documents Only + Voluntary Production + Business Records Affidavit

Use this path first: Voluntary production request with Business Records Affidavit.

This is the fastest first attempt when the non-party is likely cooperative. Send a written request for the documents along with a Business Records Affidavit for the custodian to execute and return with the records. The affidavit is required to make the records admissible at trial without live testimony from the custodian.

If they do not respond or produce within 7 days, treat that as a refusal and escalate immediately to formal subpoena process. Do not continue waiting.

✅ RESULT 6 — Non-Party + Documents Only + Voluntary Production + No Affidavit

Use this path first: Voluntary production request (informal records-only request).

Because you did not select a Business Records Affidavit, this is an informal request for the documents only. Be aware that records produced without a Business Records Affidavit may not be admissible at trial without live custodian testimony. Confirm with the attorney whether admissibility is a concern before proceeding without the affidavit.

If they do not respond or produce within 7 days, treat that as a refusal and escalate immediately to formal subpoena process. Do not continue waiting.

✅ RESULT 8 — Non-Party + Documents Only + Formal Subpoena + DWQ Route

Use this packet: Subpoena Duces Tecum + Deposition on Written Questions (DWQ).

This is the formal custodian-of-records process. The DWQ route allows the records to be proved up for admissibility through written questions answered by the custodian, without requiring a live deposition.

Texas timing rule — two-step process:

1. Step 1: Serve the Notice to Produce on all other parties. Under Texas Rule of Civil Procedure 205.3, this notice must be served at least 10 days before the subpoena compelling production is served on the records custodian.
2. Step 2: After the 10-day notice period has run, serve the Subpoena Duces Tecum on the records custodian. Allow the custodian a minimum of 11 days to comply after service of the subpoena (10 days is the minimum reasonable period; 14 days is the typical and preferred production window).

Minimum total timeline from notice to production: 21 days (10-day notice + 11-day production window). If using the preferred 14-day production window, plan for 24 days total. Count from the day the notice will actually go out — not the day you prepared it.

✅ RESULT 11 — Non-Party + Oral Deposition and Documents + Same Person

Use this packet: Oral Deposition Subpoena with Duces Tecum.

The same non-party witness will appear at the deposition and bring the requested documents. The Duces Tecum is attached to the Oral Deposition Subpoena and lists all documents the witness must bring.

Texas timing rule — two-step process:

1. Step 1: Serve the Notice of Deposition on all other parties. This notice must go out at least 10 days before the subpoena is served on the witness (10 days is the minimum; 14 days is preferred).
2. Step 2: After the 10-day notice period has run, serve the Oral Deposition Subpoena with Duces Tecum on the witness. Allow the witness at least 11 days after service before the deposition date (10 days is the minimum reasonable period; 14 days is the typical and preferred window).

Minimum total timeline from notice to deposition: 21 days (10-day notice + 11-day witness window). If using the preferred 14-day windows, plan for 28 days total. Count from the day the notice will actually go out — not the day you prepared it.

✅ RESULT 12 — Non-Party + Oral Deposition and Documents + Different Records Custodian

Use two separate packets.

Packet 1 — For the live witness: Subpoena for Oral Deposition.
This compels the witness to appear and testify at the deposition.

Packet 2 — For the records custodian: Subpoena Duces Tecum + Deposition on Written Questions (DWQ).
This is the formal custodian-of-records process to obtain and prove up the documents for admissibility without requiring the custodian to appear live.

Texas timing rule for the records packet — two-step process:

1. Step 1: Serve the Notice to Produce on all other parties at least 10 days before the subpoena is served on the records custodian.
2. Step 2: After the 10-day notice period has run, serve the Subpoena Duces Tecum on the records custodian. Allow the custodian at least 11 days to comply after service (10 days is the minimum reasonable period; 14 days is the typical and preferred production window).

Minimum total timeline for the records packet: 21 days (10-day notice + 11-day production window). If using the preferred 14-day production window, plan for 24 days total. Count from the day the notice will actually go out — not the day you prepared it.

Texas timing rule for the deposition subpoena: The notice to other parties for the oral deposition may be served before or at the same time as the deposition subpoena is served on the witness. Coordinate both packets so the records arrive before or at the deposition date.

⚠ RESULT 13 — Lawyer Review Required

This person or company is not listed in the lawsuit caption, but may be under the control of a named party.

The correct path may be party discovery, a party deposition notice, a corporate representative route, or a subpoena — but that determination must be made by the attorney.

Stop. Do not prepare any packet. Ask the attorney before proceeding.

⏱ Timing Rule — Regular Person or Business

Count forward from the day this will actually go out.

• If this is a non-party oral deposition: party notice may go out before or at the same time as the subpoena.
• If this is a non-party documents-only request under Rule 205.3: the Notice to Produce must go out at least 10 days before the subpoena compelling production is served. After the 10-day notice period, allow at least 11 days for production (14 days preferred). Minimum total: 21 days.

⏱ Timing Rule — Bank or Credit Union

Special Texas bank / credit union rule. Customer records held by a bank or credit union are governed by a separate procedure under the Texas Finance Code and should not be treated like a standard non-party subpoena.

Do not assume the normal subpoena timing rules apply. Under Texas Finance Code § 59.008, the financial institution may not be required to disclose records before the 24th day after receipt of the record request under the statutory procedure.

Treat this as a lawyer-review and extended-timeline request. Confirm the correct procedure with the attorney before issuing.

⏱ Timing Rule — Hospital or Medical Provider

Count forward from the day this will actually go out.

• If you are using a documents-only subpoena, follow the notice-first timing rule: Notice to Produce at least 10 days before the subpoena, then at least 11 days for production (14 preferred). Minimum total: 21 days.
• If voluntary production is available (e.g., a signed medical authorization), that path may be significantly faster than waiting on formal subpoena timing. Confirm with the attorney whether a HIPAA-compliant authorization is appropriate.

⏱ Timing Rule — Phone Company or Internet Company

Treat this as a special-entity branch. Do not assume immediate compliance.

• Issue the subpoena as soon as possible.
• Send to lawyer review if there is any question about what records can be requested, how the recipient must be served, or whether federal law (e.g., the Stored Communications Act) affects what can be obtained through a state court subpoena.
• These recipients often have legal departments that review subpoenas before responding and may object or require additional process.

⏱ Timing Rule — Government Office or Police Department

Issue as soon as possible. Do not assume immediate compliance.

• Government recipients often have internal records offices, legal review processes, or objection timelines that slow production significantly.
• Some government records may require a separate open records request under the Texas Public Information Act in addition to or instead of a subpoena.
• If there is any question about the correct process for this recipient, send to lawyer review before issuing.