On occasion, individuals and companies will receive a subpoena in relation to a litigation that the recipient has no knowledge of, nor has any interest in the outcome. A subpoena received in relation to an ongoing civil suit is generally not an indication that a party to the litigation believes the recipient is liable or otherwise did anything wrong – it is common discovery practice in civil litigation for parties to seek information from non-parties that may have knowledge of the facts and circumstances related to a dispute. Nevertheless, receiving a subpoena is akin to being caught in a strangers’ crossfire—and the unexpected costs and expenditures associated with responding to a discovery demand in relation to a dispute that you are not a “party” to is frustrating to say the least.
If you receive a subpoena, there are several practical steps you can take to ensure your rights are protected:
- What exactly is a “subpoena?”
The word “subpoena” is thrown around so often in media that it is worth a quick primer on what a subpoena actually is. A subpoena is a formal document served by a party to a litigation, or governmental authority, under the color of court authority that requires an individual or business entity to respond either through the production of documentary evidence or testimony. Generally, a subpoena commands the recipient to (1) produce documents, electronically stored information, or other information (“Subpoena Duces Tecum”); (2) testify at a deposition, hearing, or trial (“Subpoena Ad Testificandum”); or (3) permit inspection of a premises (or a combination of two or all three).
If the subpoena seeks information from the recipient during the discovery process (as opposed to trial testimony), the recipient must respond to the subpoena as a failure to respond (or challenge the subpoena through the legal process) may result in the recipient being held in contempt of court or being subject to an order requiring compliance.
- What obligations are triggered by a subpoena?
Each subpoena comes with a different set of considerations. Take note of the basic information comprehendible from a reading of the subpoena. For example, the subpoena should include the “caption” of the lawsuit which identifies the parties. Identify which, if any, of the parties you or your business may have had dealings with and take reasonable steps to preserve documents related to that party. If your business has a document retention policy, issue a “litigation hold” to all relevant employees to prevent the deletion or destruction of any of the information being requested (even if you think you will challenge the subpoena through the legal process).
Further, if the subpoena seeks documents from you, take note of the subpoena’s deadline to respond so you know how much time you will have to gather responsive information. Generally, subpoenas seeking documents are drafted broadly to encapsulate all documents conceivably possessed by the recipient that are relevant to a dispute—and the amount of time the party serving the subpoena will likely be insufficient.
Relatedly, consult with your team and evaluate the anticipated burdens and costs associated with making the requested items available.
Take further note of any confidentiality obligations that may exist between you and any party (or non-party) that may be referenced in your response to the subpoena. Oftentimes, a contract (e.g., a Master Services Agreement, Statement of Work, Work Order, etc.) will require notice of the receipt of any subpoena or other legal process that could result in the disclosure of documents subject to the confidentiality obligations in an agreement.
If your business has legal counsel, same can assist with the foregoing.
- Is it worth calling and incurring fees for Counsel?
Yes. If a subpoena recipient has a lawyer, it should contact its lawyer and immediately provide counsel with a copy of the subpoena.
If the recipient does not have a lawyer, it should consider consulting and retaining counsel as counsel can advise on the available options and to assist with the response to the subpoena to ensure the recipient’s privileges and business relationships are protected. By way of non-exhaustive example:
- Counsel can advise whether there are grounds to seek modification or withdrawal of the subpoena (e.g., on the basis that the subpoena is overly broad, unduly burdensome, or seeks documents protected by privilege). Counsel can assist in negotiating to “narrow the scope” of the subpoena, or, apply for judicial remedies (e.g., a motion to quash or motion seeking a protective order).
- Counsel can negotiate and/or request a Confidentiality Order to ensure all documents produced or testimony obtained is reasonably protected from public disclosure.
- Counsel can assist with securing additional time or conditions on the response to the subpoena.
- Counsel can advise on the recoverability of any costs associated with the recipient’s response to the subpoena.
- Counsel can assist the recipient in helping review documents for responsiveness and privilege.
Thus, while it is undoubtedly frustrating to receive a subpoena and incur the expense required to respond to same, experienced counsel can assist the recipient in navigating through the process for an efficient, cost-effective outcome that protects the recipient while satisfying its obligation to respond to or oppose the subpoena.
For further guidance and counsel on responding to a subpoena, or any other related matters facing your business, please contact Sean Rose () in OlenderFeldman’s Commercial Litigation Group.
