Protect your Information, Comply with the Court: Non-Party Response to Subpoenas in Civil LitigationMetropreneurial Legal Insights — By Catherine Jopling on May 15, 2014 at 8:00 am
You’ve been served with a subpoena. The document looks very official. It’s signed by a judge. There’s a case name and number at the top — you are not a plaintiff or a defendant, but perhaps the plaintiff or defendant’s names are familiar to you. As far as you know, you’re not being sued. The subpoena gives instructions — perhaps a date, place and time where you’re expected to show up and bring documents or be deposed. There might be a list of topics or types of documents you’re supposed to bring. What’s next? Do you have to comply?
Individuals or businesses have a duty to comply with properly issued subpoenas. These individuals or businesses are “non-parties” and may not be directly involved in the litigation but nevertheless must participate in the discovery phase when subpoenaed by a court with jurisdiction.
One of the parties in the lawsuit wants something from you. This is the “requesting party” and could be either the plaintiff or the defendant in the case referenced on the subpoena. The requesting party could be a competitor of yours, a government entity or even an organization you’ve never heard of before. Depending on what kind of information the requesting party is seeking, you may be very reluctant to hand over the information listed on the subpoena.
With no skin in the litigious fight, spending money to give another organization your records, files and documents is an expensive burden. It is annoying at best, but could have even more serious effects on your business if you are being asked to give information about your customers, internal policies or other sensitive information. However, noncompliance with a served subpoena can expose you to contempt of court. Fines or other unwanted consequences could follow.
The first place to save valuable time and effort is to negotiate with the requesting party’s lawyer to narrow the scope of discovery. The original subpoena may seem to ask for every scrap of paper in your office or every email you’ve ever written since the dawn of time. However, negotiating the terms down to the particular documents that are relevant to the requesting party’s needs, or are reasonable for you to provide, will keep you from having to give over the keys to your metaphorical filing cabinet to the requesting party. A shorter, more specific list of documents means less time for you to collect documents.
Second, seeking the advice of a lawyer can help protect your information. If necessary, she can navigate filing a Motion for Protective Order with the court, asking the judge to restrict the requests in some way. Remember, you must comply with the subpoena. If the other side has not agreed to narrow the categories of documents or types of information it requested, then you must have the judge sign off on the restrictions you’d like to set. There are a variety of factors here, and your lawyer will be the best person to advise you on the legal justifications for your restrictions.
A protective order can also keep your documents private within the context of the litigation. Your lawyer can work with the requesting party to keep your documents private even if you do produce them, limiting any public exposure that might stem from a trial. Not every category will be restricted just because you’d rather not give it to the requesting party, but your lawyer will be your best advocate.
Third, consider the method and timeline for getting your documents to the requesting party. The date listed on the subpoena for compliance might be very soon— perhaps only days from the time you opened the envelope. Involving a lawyer early on is the best way to protect your information and ensure you are in compliance with the subpoena. It is perfectly acceptable to work with the other side to create a more reasonable timeline that will allow for thorough compliance and an opportunity to protect your documents.
You may want to consider alternative ways to get the documents to the requesting party. For example, your lawyer can host the requesting party at a neutral site (such as your attorney’s office) to inspect the documents. The requesting party can then flag certain documents, and only those selections may be copied at the expense of the requesting party. Other arrangements might be available to suit your particular needs.
You must comply with the subpoena. However, there’s some flexibility in the content, time and manner of document production. Hiring an attorney to protect your interests and guide you through the process could not only save you money, but also protect your sensitive business information from public broadcast.