Under what conditions may a non-party be served with a request for production?

• A. Non-parties cannot be served
• B. Non-parties may be served only if information is in their possession, custody, or control and produced in the form they normally maintain
• C. Non-parties may be served only by subpoena
• D. Non-parties must be subpoenaed

Answer: (B)

The main idea is that you can serve a request for production on a nonparty only if the nonparty actually has the requested materials to produce. The material must be in the nonparty’s possession, custody, or control, and you must request production in the form in which the nonparty ordinarily maintains those materials (or in a reasonably usable form for electronic data). This keeps the demand tethered to what the nonparty can realistically provide and respects their usual recordkeeping.

If the information isn’t in the nonparty’s possession, custody, or control, a direct Rule 34 request to that nonparty isn’t appropriate. In that case, you’d typically pursue other mechanisms to obtain the documents, such as a subpoena under Rule 45.