Wolk and Levine’s Subpoena Series: Responding at the Federal Level
“How do I respond to a subpoena?” The answer is, it depends on the circumstances. First and foremost, did the subpoena come from a state court or a federal court? For Part 2 of Wolk and Levine’s Subpoena Series, we will focus on responding to Subpoena’s issued by Federal courts.
How Do I Know the Subpoena is Federal or State?A federal subpoena form will generally contain the phrase “United States District Court” at the very top. State subpoena forms will generally contain the name of the applicable state court and will not mention United State Courts. For example, a California subpoena form reads “Superior Court for the State of California County of…”
What are Some Ways in Which a Federal Subpoena Differs from a California Subpoena?The Federal Rules of Civil Procedure do not set forth a minimum amount of days for compliance with subpoenas. Thus, the due date for the production of documents may be set exclusively by the subpoenaing party. The Rules do provide that any objections to a subpoena must be submitted on the earlier of the date the documents are due or 14 days following receipt of the subpoena. In both cases, this is less than the time to provide objections to a subpoena issued under California law. If a party does not provide objections to a subpoena within the stated time, it waives its right to do so. This can apply to all objections, including those based on privilege or privacy. In short, don’t sleep on subpoenas! As mentioned in the last post, if your company receives a subpoena it is wise to contact an attorney as soon as possible.
Federal law also requires the custodian of the subpoenaed records to preserve the same through the length of the applicable action. Therefore, upon receiving a subpoena, even if your business plans to object or contest it, you will likely be required to identify all parties including your employees, who may be custodians of potentially responsive documents and issue a “litigation hold,” requiring them to identify and maintain these documents until the end of the action.
Is the Request Unduly Burdensome?Generally, the documents a subpoena requests are described in the subpoena or a separate attachment. Federal law does not contain a requirement for the subpoenaing party to describe the documents with particularity. However, the subpoenaing party does have a duty to take reasonable steps to avoid imposing an unreasonable burden or expense on the responsive party.
How do I Respond and Can I Object?We’ve mentioned this before, but the best way to respond to a subpoena is to contact an experienced attorney. An attorney can advise your business whether it should respond completely, serve objections, or file a motion to quash, i.e. cancel, the subpoena entirely. Under Federal law, a business can object to a subpoena for records if, among other things, it does not allow for sufficient time to comply, imposes an undue burden, request privileged information, or requires a disclosure of trade secrets or other confidential business information. Keep in mind that if you receive a subpoena seeking your testimony, in addition to or in lieu of document production, you cannot simply object but must file a motion to quash if you believe that you or your business should not have to appear.