A federal court recently criticized a set of subpoenas as "shockingly broad," describing the issuing party as having "abandoned both the fishing pole and the net" and "brought dynamite to the lake." These subpoenas demanded ten years of documents from two advocacy organizations, including drafts, internal arguments, board members, coalitions, and agency comments. The court found they violated the First Amendment.
While you may never draft a subpoena targeting an advocacy group, the mistakes in this case appear in ordinary discovery all the time.
Why These Mistakes Keep Happening
Overbreadth often results from process failures, not malicious intent. Requests are built from prior templates, definitions are copied and expanded without trimming, and those drafting them don't bear the cost of collection. The receiving side, under deadline pressure, often negotiates rather than challenges. This leads to requests that seem thorough but function as coercion. In this case, the court found real harm: the organizations canceled programs, withheld protected statements, and warned members and funders that future communications might be reviewed by the State.
Mistake 1: Copying a Kitchen-Sink Definition of "Document"
Why It Happens: Long definitions feel safe. Each added category seems to close a loophole, so the definition grows.
Consequence: The subpoenas defined "document" to include all drafts and non-identical copies, listing 25 forms from telegrams to social media posts. The court cited this as an example of excessive breadth. Unreasonable definitions can make a request so burdensome that objections to the entire series are sustained.
Fix: Anchor your definition to the governing rule. Tie "document" to the scope of Fed. R. Civ. P. 34(a)(1) and, for writings, recordings, and photographs, to Fed. R. Evid. 1001. A short definition that tracks the rule is harder to attack and easier to comply with. Treat drafts and non-identical copies as separate documents only where you can articulate why they matter.
Mistake 2: Using an Open-Ended Time Window
Why It Happens: Drafters pick a long lookback "to be safe" and leave the end date open.
Consequence: The demand period ran to the date of compliance, making the subpoenas cover new communications written while they remained outstanding. This creates a moving target, effectively placing the responding party under continuous surveillance.
Fix: Set a fixed cutoff date and justify the start date against the claims at issue. Ten years needs a reason tied to the dispute. If you need later material, serve a supplemental request. On the responding side, a defined date range is the foundation of a defensible Records Freeze or Legal Hold scope.
Mistake 3: Requesting by Category of Activity Instead of by Issue
Why It Happens: It's easier to ask for "everything about X" than to identify the specific facts you need.
Consequence: The subpoenas sought every statement the organizations had published about a West Virginia energy business with a "Climate Claim," plus a decade of material far beyond the single model that prompted the inquiry. The court noted that no demand identified a consumer, a sale, or a statement anyone relied on. Without a link between the requests and a cognizable claim, the demands read as an inquiry into how citizens formed their views.
Fix: Write each request to answer a specific element of a claim or defense. If you can't say which element a request serves, cut it. This is proportionality thinking applied at the drafting stage, before a judge does it for you.
Mistake 4: Ignoring Constitutional Exposure in the Request Itself
Why It Happens: Discovery teams focus on relevance and burden, overlooking First Amendment issues.
Consequence: The requests reached internal deliberations, shared board members, coalition memberships, funded groups, and comments filed with agencies the organizations were petitioning. The court held that this trespassed on freedom of association and chilled protected speech. The State had already withdrawn its demand for funder names and amounts, but the remaining demands still drew the court's ruling.
Fix: Add a screening step. Before issuing or responding, ask whether any category touches membership, donors, internal advocacy strategy, or petitioning activity. If it does, escalate to counsel before collection begins. As a responding party, document how compelled disclosure would burden speech or association, because courts weigh that record.
Mistake 5: Treating Burden as the Responding Party's Problem
Why It Happens: Cost is invisible to the requester. The collection effort, review time, and operational disruption land entirely on the other side.
Consequence: Here the burden was not only logistical. It was behavioral. The court found the organizations were self-censoring and second-guessing every advocacy statement, and that this loss of faith and denial of protected expression could not be cured with damages.
Fix: Make burden estimation part of request design. Sample the data sources, identify custodians and systems, and test whether a narrower request gets you the same evidence. On the responding side, quantify burden early and put it in writing. A concrete, early burden record carries far more weight than a generic objection filed at the deadline.
Prevention Checklist
- Tie your definition of "document" to Rule 34(a)(1) and Federal Rule of Evidence 1001, not a custom list.
- Set a fixed start and end date, and be able to justify both.
- Map every request to a specific claim or defense element.
- Screen for First Amendment exposure: membership, donors, internal deliberation, petitioning activity.
- Estimate burden before you serve, and revise requests that fail the test.
- Treat drafts and non-identical copies as in scope only by deliberate choice.
- On the receiving side, scope the Legal Hold narrowly to the real dispute and document your reasoning.
- Record your objections and burden evidence early, not at the deadline.
- Keep a reviewed, rule-aligned definition set so nobody drafts from an inflated template.
A request that cannot survive a reasonableness test will not survive a judge. Build that test into your drafting process to protect both your client's position and the integrity of discovery itself.
