Being served with a third-party subpoena[1] is an unwelcome event. In a best-case scenario, it presents a hassle. Failing to comply with one’s legal obligations regarding the subpoena can result in a finding of contempt and court-imposed sanctions. In order to comply, time and resources that could be spent productively on an organization’s core activities have to be redirected to a legal matter to which the organization may only have a tangential connection. While dealing with subpoenas are an unfortunate part of the cost of doing business, there are ways to minimize the costs and disruption associated with them and maximize protection of the organization.
Determine if the subpoena is enforceable.
Just because a party has been served with a subpoena does not mean that the subpoena can be enforced. For instance, with surprising frequency, parties will have a subpoena issued from a state court where an action is pending and then serve that subpoena directly on a business or person located in a different state without following the required procedures under the Uniform Interstate Depositions and Discovery Act or other applicable law. In federal court, Federal Rule of Civil Procedure 45 places territorial limits on how far a person can be required to travel to testify or produce documents pursuant to a subpoena.
If a subpoena does not comply with the territorial limits of the subpoena power of the court, it may well be unenforceable. Raising this issue with counsel of the subpoenaing party may lead counsel to decide not to pursue the subpoena at all or, at the very least, force counsel to start the subpoena process anew.
Make an up-front assessment of what compliance with the subpoena requires.
The importance of conducting a prompt, detailed assessment of what a business needs to do to comply with the subpoena cannot be overstated. The more detailed and thorough this initial assessment is, the better prepared one will be to both comply with their legal obligations and convincingly argue for a narrower scope of the subpoena.
Considerations should include where the requested documents and information are stored (email accounts, electronic file folders, databases, laptops, employee work phones, cloud systems, old servers or systems no longer in use but still in existence, etc.), how searches to locate responsive documents would be conducted and by whom (e.g., is it necessary to engage electronic discovery service providers), estimates of how long it would take to complete the searches and produce the documents, and approximations of how much time would be spent searching for and reviewing the documents before they are produced. Making this up-front time investment to gather and understand this information can pay off in multiple ways.
Court rules, although they vary, generally impose an obligation on the subpoenaing party to avoid imposing an undue burden or expense on the party being subpoenaed, and provide for the possibility of sanctions on parties and attorneys who do not comply. E.g., Fed. R. Civ. P. 45(d)(1). Coming armed to a meet-and-confer with counsel for the subpoenaing party with information about the time burden and monetary cost the subpoena imposes can be an effective way to negotiate a narrower scope of the subpoena. Courts can, in some circumstances, order the subpoenaing party to pay a portion of the responding party’s costs, a fact that will be known to counsel. E.g., Seattle Times Co. v. LeatherCare, Inc., 232 F.Supp.3d 959 (E.D. Mich. 2017) (requiring subpoenaing party to pay 60% of the responding party’s costs related to complying with subpoena). Even if negotiations are not successful, the assessment will provide information needed to support a motion to quash or for a protective order, which are ways to seek a court order limiting or eliminating the subpoenaed party’s obligations with respect to the subpoena.
Serve timely written objections.
Many court rules provide the opportunity for the subpoenaed party to serve written objections to a subpoena. Under the Federal Rules, written objections must be made within 14 days of service of the subpoena. In addition to outlining the legal objections a party has to the subpoena, written objections provide another opportunity to educate counsel for the requesting party as to any undue burden or expense the responding party faces.
Ensure a protective order is in place for the disclosure of confidential information.
Confidential business records and information often falls within the scope of what is requested in a subpoena. There may be a protective order already in place in the litigation which by its terms applies to and can be used by third parties served with subpoenas. If a copy of the protective order is not provided with the subpoena, it should be requested right away so that a determination can be made if it is sufficient. If there is no pre-existing protective order, the subpoenaed party should propose one and make clear at the requesting party at the outset that it will object to producing any confidential information absent entry of an acceptable protective order.
While a third-party subpoena may be an unwelcome intrusion on a business, a prompt, careful, and thorough assessment of the subpoena and a proactive approach to addressing it can help to minimize the disturbance.
[1] Being served with any subpoena is an unwelcome event, but this article focuses on third-party subpoenas in litigation, as opposed to subpoenas in criminal or governmental investigations.