This is part one of a three-part series. Part one will provide you with a greater understanding of the subpoena process and best practices. Parts two and three will address risks and procedures that go along with responding to a subpoena.
The company receptionist just called to report that a subpoena has been served. What do you do? Ignore it? Refuse to comply? Produce the requested documents and have one of your employees testify?
For many in-house counsel, responding to a subpoena is one aspect of litigation that a company rarely experiences. Yet, subpoenas serve an important function in the U.S. litigation process. Moreover, the wrong response to a subpoena can have serious ramifications, including fines for contempt.
A subpoena is a formal written order, sometimes called a “writ,” issued by a court or other body commanding a person to appear and testify and, in some cases, to produce documents. The subpoena is a court order, and failure to respond to it can be punished as contempt.
It is generally recognized that a court cannot issue a valid subpoena absent a pending civil, criminal or administrative proceeding. Consequently, a subpoena may not be used to compel a person to appear or to produce documents ex parte before an attorney, a party or a representative of the party.
Because the validity of a subpoena depends on the existence of a proceeding, it is imperative a company served with a subpoena learn as much as possible about the existence of the lawsuit or proceeding from which the subpoena was issued. Any valid subpoena should include a caption which identifies the name of the court or body issuing the subpoena, the names of the parties to the proceedings and the assigned docket number.
Because many court dockets are now maintained electronically, you should be able to take the information from a subpoena’s caption and obtain copies of the pertinent pleadings. Alternatively, because a subpoena must have the name, address and telephone number of the attorney who issued it, copies of the pertinent pleadings can be obtained from that attorney. If there is no actual lawsuit or proceeding, then the subpoena has not been lawfully issued and it may be quashed.
In addition to determining the validity of a subpoena, learning about the underlying lawsuit or proceeding serves other equally important purposes. For example, knowing the identity of the court or administrative agency and the matter’s case identification number is important to identify what case management orders or other rules may exist. Those orders and rules will reveal whether a subpoena has been issued in a timely manner as part of permissible discovery or whether it is invalid.
Also, these orders and rules will disclose the time periods and format one must follow to properly preserve objections to and/or present motions to quash or modify an improperly issued subpoena. As such, it is important to know these case management orders and rules to avoid any issue of waiver.
Moreover, knowing the nature and claims of the underlying lawsuit or proceeding may reveal that the subpoenaed company, or one of its officers or employees, is the target of a criminal or administrative investigation, or may become joined as a party to the underlying lawsuit or proceeding. Learning about the underlying lawsuit or proceeding may impact what objections or privileges should be asserted in response to the subpoena in order to avoid any argument as to waiver.
It may be prudent not to rely solely on information provided by the party for whom the subpoena has been issued. Rather, it is often wise to talk with the opposing party or that party’s counsel about the lawsuit, so that you have a better understanding as to why the subpoena has been served and what effect, if any, compliance will have on the lawsuit or claims asserted therein. Consequently, it is appropriate to ask the attorney issuing the subpoena for the contact information of the opposing party or its counsel.
Learning as much about the existence and nature of the lawsuit or proceeding from which the subpoena was issued is one of the most important steps that a company served with a subpoena must take in order to properly respond to that process. Failure to do so may lead to serious risks and other consequences.