Top 11 Tips in Responding to a Subpoena

January 16, 2018

Most people react in one of two ways when they receive a subpoena: they either ignore it, or they panic. Of these two responses, panicking is the better one because it at least prompts you to call your attorney. Please do call your attorney, but don’t panic. Your attorney will help you prepare your response to the subpoena in a way that complies with the law, preserves your or your company’s rights, and protects the confidentiality of personal or business information.

A subpoena is a formal written order requiring you to provide documents or testimony in connection with a particular lawsuit or a governmental investigation. A subpoena for documents requires you to provide specific documents or categories of documents. A subpoena for testimony requires you to testify under oath at a deposition, at a trial, or both. You or your company do not need to be parties to the lawsuit (and almost always are not), nor do you need to be the subject matter of an investigation, in order for you to be bound by the subpoena.    

Accordingly, you should bear the following in mind when you receive a subpoena:

  1. Do not ignore the subpoena. For many subpoenas, if you do not make objections within 7 to 14 days of receipt of the subpoena, you forever waive the right to object to all or any portion of the subpoena. Therefore, when you receive a subpoena, consult your general counsel or outside attorney right away.
  2. Your response to the subpoena should both preserve your rights and also comply with court rules. An incorrect response or a failure to respond to a subpoena can have serious consequences, such as fines for contempt or the waiver of your rights.
  3. Except for your attorney, do not speak with anyone outside the company about the subpoena or the underlying lawsuit or investigation and only speak to those within your company who have a need to know about the subpoena, lawsuit, or investigation.
  4. Whether or not you ultimately provide the information to the party issuing the subpoena, you have an obligation to preserve documents and information that the subpoena calls for. Do not destroy or throw away any documents, and contact your IT department to turn off auto-delete protocols on the relevant persons’ email. Failure to do so can result in court sanctions.
  5. Some purported subpoenas are not valid. For example, if a subpoena violates a case management order or a local rule, or the subpoena issued from another state, the subpoena may be invalid and you may not need to respond at all. But you often cannot tell that simply from the face of the subpoena. Your general counsel or outside attorney can help you determine the validity of the subpoena.
  6. If a subpoena calls for disclosure of confidential, proprietary, or sensitive information, such as trade secrets or business strategy, your attorney may object on this basis and require that your confidential information be protected.
  7. Some subpoenas may call for confidential information of a customer or a vendor that you are obligated to protect under your contract with the customer or vendor. If a subpoena does so, you must review and comply with the confidentiality provisions in the applicable contracts. Some contracts require you to notify the customer in a timely manner to allow the customer to seek protection from the subpoena. Your general counsel or outside attorney can help ensure you are complying with these contractual obligations.
  8. Some subpoenas are quite broad and may seem to call for hundreds or even thousands of documents. You may not have to provide all of the documents requested, and you may not have to testify. Your general counsel or outside attorney can help you understand your obligations and narrow the scope of the subpoena through negotiations with the attorney who issued the subpoena while still complying with court rules.
  9. The subpoena may be a signal that the subpoenaed company, or one of its officers or employees, might become joined as a party to the lawsuit or is the target of a governmental investigation. Your general counsel or outside attorney can help research the nature of the claims of the underlying lawsuit, which may impact the objections that you should assert in response to the subpoena.
  10. Do not communicate with the attorney or governmental agency that issued or sent the subpoena without first consulting with your attorney. The party issuing the subpoena may give you self-serving information or something you say or write could be used against you or your company later. Your attorney should speak with both the attorney who issued the subpoena and the attorney for the opposing party in any lawsuit to obtain a better understanding of the parties’ claims, why the subpoena was issued, and your role, which may impact the objections that you should assert in response to the subpoena.
  11. Never attend a deposition or a trial without an attorney. Your attorney will help you prepare for the deposition or trial and will preserve and protect your rights.