“HELP! MY COMPANY JUST GOT A SUBPOENA!”
A frantic call comes in from the client who explains that their company just received a federal non-party subpoena. Talk the client off the ledge and know the steps that should be taken to keep your client’s reaction to the subpoena as efficient and non-disruptive to their business as possible.
A HypotheticalThe business was served with a non-party subpoena in a federal court civil action. The first thing you do is have the client send the subpoena to you. Have them take pictures of it and text it to you if they are out of the office. Just get it in your hands as quick as possible.
Determine what jurisdiction the action is pending in and who the issuing attorney is from the document, and prepare of a letter of representation. Email them the letter of rep and then call them to find out what it is they are looking for. Of course, the subpoena will have a list of the documents that they are seeking but maybe it is something specific that will obviate the need for an expensive search and production of voluminous documents. After your conversation with the issuing attorney immediately call your client and update them - good news or bad news.
Explain to the client every step that you are taking. You should not be interrogating the client about why they were served with the subpoena. You may not want to know and you definitely do not need to know to get things underway to stabilizing the subpoena's clock that has been running since its service on your client's company. If the client has concerns involving criminality, tell them not to talk on the phone and arrange a private meeting.
"Can't we just tell them we don't have anything?" Negative.
If the client determines that it does not possess any documents requested in the subpoena (or they just do not want to get involved), they must still respond to the issuing party in writing stating that fact in the form of a declaration or affidavit.
1. HAVE THE CLIENT ALERT ALL NEED-TO-KNOW EMPLOYEES - inform your main people about what is happening and what the company is doing about it.
2. CALENDAR DEADLINES - the subpoena will have due dates. Determine if you need an extension
3. HAVE THE COMPANY ISSUE A LITIGATION HOLD IMMEDIATELY AND BEGIN DOCUMENT COLLECTION AND REVIEW
The Law You Need to KnowThe company receiving a document subpoena has a duty to identify and preserve responsive documents. See In re Napster, Inc. Copyright Litig., 462 F. Supp. 2d 1060, 1068 (N.D. Cal. 2006)). Your client should immediately take the following steps to ensure that all responsive documents are identified, collected and preserved: Issue a written litigation hold notice requiring employees to preserve all potentially responsive documents and other information, including e-mails, backup tapes and any other electronically stored information (ESI) in addition to hard copy documents. Identify all potential custodians of the document, including IT personnel and employees who may possess relevant information. Instruct employees on how to search for and collect responsive documents and other information, and oversee the search and collection process. Alternatively, it may be preferable to have discovery vendors conduct the search and collection efforts. Employees should be notified if outside counsel or discovery vendors are conducting the search and collection efforts.
Oversee document preservation (by employees or vendors) and collection efforts to ensure they comply with the company's discovery obligations. Review collected documents for responsiveness, privilege and confidentiality. See Chin v. Port Authority, 685 F.3d 135 (2d Cir. 2012); Nat'l Day Laborer Org. Network v. U.S. Immigration and Customs Enforcement Agency, No. 10-cv-3488, 2012 WL 2878130 (S.D.N.Y. July 13, 2012); and, Zubulake v. UBS Warburg LLC, 229 F.R.D. 422, 431-34 (S.D.N.Y. 2004).
Preserve Documents that are Off Premises
Generally, the recipient of a subpoena must produce all responsive documents within its possession, custody or control, regardless of where those documents are located. Hay Grp., Inc. v. E.B.S. Acquisition Corp., 360 F.3d 404, 412-13 (3d Cir. 2004); In re Auto. Refinishing Paint Antitrust Litig., 229 F.R.D. 482, 494-95 (E.D. Pa. 2005) (compelling production of documents held overseas)).
Methods of ProductionIV. DETERMINE POTENTIAL RESPONSE OPTIONS
The company may respond in several ways. Depending on the circumstances of the case, they may:
1. Comply with the subpoena and provide the requested testimony or documents, or both.
2. Serve written objections to a document subpoena.
3. Move to quash (or modify) the subpoena.
4. Move for a protective order.
5. Contact the party who served the subpoena in an attempt to informally resolve the issue.
6. Contact a party to the litigation whose interests are adverse to those of the party that issued the subpoena and attempt to have them oppose the subpoena.
V. DECIDE WHETHER TO COMPLY WITH THE SUBPOENA
Consider this: The time, effort and cost of compliance or resistance. Whether there is any legal authority supporting resistance to compliance and the likelihood of success.
Produce Documents in Possession or Control
A party who chooses to comply with a document subpoena must produce all materials in its possession, custody or control, regardless of their location. See FRCP 45(a)(1)(A)(iii). For example, a California corporation served with a subpoena issued by a California federal court commanding the production of documents at a specified place within the state of California must produce all responsive documents even if those documents are located in its New York office (assuming the subpoena is not otherwise objectionable). A company may also be required to produce documents that it "controls," even if those documents are in the physical possession of a corporate affiliate.
Form of Production
For hard copy documents, the recipient of a document subpoena generally does not need to produce the original documents. Photocopies often suffice. For large-scale document productions, parties typically scan the requested hard copy documents onto a flash drive or DVD. Keep track of the production using Bates Stamps.
Organizing the Production
The documents should be produced in line with the categories in the subpoena. See FRCP 45(e)(1)(A). Or the company can choose the manner in which to produce the documents and can even produce them in a more efficient form.
The Least-Preferred Method of Production by Companies: Inspection as Alternative to Production
"Come to our offices and see what you want?" Under certain circumstances, the company may want to offer inspection as an alternative to actually producing documents, ESI and other materials. Keep in mind that even if the company chooses to comply with a subpoena by producing copies of documents, the issuing party may also seek to inspect, copy, test or sample the original documents or materials, unless the recipient formally objects. See FRCP 45(a)(1)(D).
Electronically Stored Information ESIMore often than not these days, subpoenas will request the production of e-mails and other ESI. If the subpoena does not specify a form for producing ESI, the company must produce responsive materials in the way they are ordinarily maintained or in a reasonably usable form. See FRCP 45(e)(1)(B). But they are only produced in one format one time. See FRCP 45(e)(1)(C).
The company does not need to provide ESI from sources that cause undue burden or cost. See FRCP 45(e)(1)(D). The company would have to show that the information is not reasonably accessible because of a hardship. See3 FRCP 45(e)(1)(D). Nevertheless, the court may still order discovery if the requesting party shows good cause. See FRCP 45(e)(1)(D). The court is also empowered to specify conditions for the discovery. So ask for conditions if you need them. See FRCP 45(e) (1)(D).
Only Produce to Party that Issues Subpoena
The company only needs to deliver the documents to the location stated in the subpoena. It does not need to serve the documents on every party to the underlying action.
The court where the lawsuit is pending has authority to enter a protective order governing the disclosure of documents sought in a subpoena even if compliance with the subpoena must be enforced in another jurisdiction. See FRCP 26(c)(1). If a confidentiality agreement has already been entered by the court where the lawsuit is pending, it may include a that automatically controls the treatment of any documents produced by non-parties in response to a subpoena. Alternatively, if the terms of an existing confidentiality agreement are acceptable to the company, it may be possible to simply enter a stipulation expanding the scope of the existing agreement to cover any documents produced in response to the subpoena.
Keep in mind that the subpoena's clock can be stopped or modified informally by stipulation. Communication with your client and with the issuing attorney is critical to keep this process efficient and as non-disruptive to your client's business as possible.