Subpoenas: Oh How I Loathe Thee!

Of all the unanticipated challenges companies are forced to address, one of the peskiest may be a subpoena served in connection with an unrelated lawsuit between third parties. But as disruptive as subpoenas can be, mishandling them – or worse, ignoring them – can hold severe consequences.

Subpoenas can be served by a plaintiff or defendant in a lawsuit to require “third parties” (companies or individuals not directly involved in the lawsuit) to produce documents or provide testimony that may be relevant to that case. An individual or company served with a subpoena should consult with an attorney as soon as possible to determine how best to proceed. There are a number of procedural and substantive objections that a third party can raise against a subpoena; among them are that the subpoena:

  • is unduly burdensome or that it subjects the third party to undue expense;
  • was not served in accordance with the applicable rules;
  • requires excessive travel;
  • seeks privileged or otherwise protected information; or
  • does not provide adequate time to comply.

While it is sometimes strategically or technically necessary to file formal objections to a subpoena, in many instances it may be possible to negotiate informally with the serving party’s attorney to narrow the scope of a request for documents contained within a subpoena. During this process, the third party’s attorney can also work to minimize the disclosure of confidential and proprietary information, and require that any such information produced be subject to special protection. The third party’s attorney may also be able to negotiate additional time to respond to the subpoena along with other reasonable accommodations.

A tempting, but peril-filled, approach is to produce documents without an attorney’s assistance, or, to simply ignore the subpoena. Failing to comply with a subpoena can put a third party at risk of being held in contempt of court, which could result in costly monetary sanctions and embarrassment. Likewise, while producing documents without an attorney’s assistance could theoretically minimize costs on the front-end, it may cause the company to become a “target” for further subpoenas – either by the same party or by others who may attempt to take advantage of the company. More fundamentally, this approach may lead to the unnecessary disclosure of information that the company may not have been legally required to share.

Although it is unrealistic for a company to expect to avoid subpoenas altogether, it is possible to minimize the expenses and risks associated with non-compliance by promptly addressing the subpoena and working with the serving party to resolve the relevant issues.

Please contact Wright Beamer if you have any questions or need assistance in connection with this or any other legal matter.

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