In litigation, a party will often use a third-party subpoena to obtain documents from individuals, businesses, or other entities that are not parties to the lawsuit. Those that receive subpoenas often wonder whether they should respond, how to respond, what, if any concerns they should have, and what, if any, precautions they should take. There are several critical steps you should take to ensure you will comply with the subpoena.
Engage an Attorney
If you are a business and do not have an in-house legal department, or you’re an individual without counsel, you should strongly consider engaging an attorney. An attorney will help guide you through the process and can be particularly helpful for businesses where the subpoena requests the production of documents that may be proprietary and/or confidential. An attorney can also assess whether you have any legal jeopardy; sometimes subpoenas will be used as a tool to determine whether a lawsuit should be filed against a non-party.
Businesses: Notify Anyone Else of Importance
You should notify your attorney, or retain one, with litigation experience and you should notify any high-level corporate officers and executives. In addition, if any documents are in the possession of a partner, parent, or subsidiary, you should notify that company of receipt of the subpoena.
Businesses: Issue a “Litigation Hold” Notice
When a business is served with a subpoena, a “litigation hold” notice to its employees or others with custody or control should be issued. This “litigation hold” is in writing and provides notice that any documents or other information that may be responsive to the subpoena must be preserved.
Begin Collecting Documents
A business should: 1. Identify all individuals who may have responsive documents, and 2. Instruct individuals on how to search for and collect documents. The collected documents should then be safely maintained to ensure they are not lost or destroyed.
Review the Documents Collected for Responsiveness, Privilege and Confidentiality
Once all responsive documents are gathered they should be reviewed to determine:
- If a document is responsive. If a document is not responsive to a request in the subpoena (i.e., it does not relate to any request in the subpoena), you have no obligation to — and should not — produce it.
- If a document is privileged. If it is a communication between you and an attorney for the purpose of rendering legal advice, or it is a document you prepared at the direction of an attorney for purposes of litigation — you have no obligation to disclose it – because it is a privileged communication.
- If a document is confidential. If it contains sensitive financial information or trade secrets — you may request that the party that served you with the subpoena sign a confidentiality agreement that restricts disclosure of the document to anyone else.
Determine How to Respond to, or Challenge, the Third-Party Subpoena
Once the documents have been collected and reviewed, you must determine how to respond to the subpoena. There are a few options: 1. Comply with the subpoena and provide the requested documents, 2. Object to the subpoena, 3. Move to quash the subpoena, 4. Move for a protective order, or 5. Contact the party that served the subpoena to attempt to resolve the requests informally.
Consequences of Not Complying with a Subpoena
If the third-party subpoena for documents you received is valid, and there are no grounds for challenging, you must comply with it and respond with the production of documents requested. If you do not comply, you may be held in contempt of court or fined or imprisoned.