Subpoenas serve a very important function in the litigation process, and the wrong response to one can have very serious ramifications. Here are several guidelines regarding properly responding to a subpoena:
- Determine the subpoena’s validity. It is generally recognized that a court cannot issue a valid subpoena absent a pending civil, criminal or administrative proceeding, and a subpoena cannot be used to compel a person to appear or to produce documents ex parte before an attorney, a party or a representative of the party.
- Learn about the underlying lawsuit. It is imperative a company served with a subpoena learn as much as possible about the existence of the lawsuit or proceeding from which the subpoena was issued. Knowing the identity of the court or administrative agency and the matter’s case identification number is important to identify what case management orders or other rules may exist.
- Determine potential objections. Generally, objections to a subpoena range from procedural defects to more substantive ones, such as privilege. Examples include lack of personal service, unreasonable response time, and service after the discovery deadline has passed.
- Issue a litigation hold. After receipt of the subpoena, you will need to issue a written litigation hold notice requiring employees to preserve all potentially responsive documents and information.
- Begin document collection and review. A company served with a document subpoena must produce all responsive documents within its control, and the recipient’s duty to preserve is triggered regardless of whether it believes that the subpoena is objectionable. Ultimately, it is the court (not the recipient) that determines the subpoena’s validity.
- Don’t just blindly comply. Courts have quashed or modified subpoenas when compliance would have resulted in the public disclosure of trade secrets or otherwise confidential information. When faced with a subpoena, a company needs to understand and evaluate how public disclosure of the requested testimony or information will affect its business or operations.
- Production. The subpoena’s recipient should ensure that the requested documents arrive at the location stated in the subpoena on or before the return date. The party responding to the subpoena should prepare and retain proof of service in its files and present it to the court if the issuing party claims that the recipient did not comply with the subpoena’s demands.
We trust that the above article was useful and thought-provoking; however, please note that it is intended as a general guide and opinion only, not a complete analysis of the issues addressed, and readers should always seek specific legal guidance on particular matters. For more information on LPL coverage generally, contact USI Affinity today.