This is the final article in a three-part series. In Parts I and II, we discussed what a subpoena is, the importance of learning as much as possible about the underlying proceeding and the potential risks that exist in blindly complying with a subpoena. Here, we will address best practices for responding to a subpoena and highlight various objections you may want to assert on behalf of the served company.
There are three steps that one must take after you have learned as much as possible about the underlying proceeding and have assessed the potential compliance risks.
1. Determine possible objections
Your first step is to determine what objections, if any, may exist. Generally, objections to a subpoena range from procedural defects to more substantive ones, such as privilege. Whether one or all of these objections may exist must be determined before one responds to a subpoena in order to avoid any claim of waiver.
Examples of objectionable procedural and substantive defects include:
- Lack of personal service: In order to be valid, a subpoena generally must be served in person by a non-party adult and not by any form of mail, fax or alternative service
- Witness fees & mileage costs: The tendering of witness and mileage fees for a subpoena seeking the testimony of a witness generally is mandatory in order to have a valid subpoena. However, such fees are not required for subpoenas that seek only documents
- After discovery deadline: Several courts have concluded that after discovery closes, a subpoena cannot be used to obtain information that could have been produced during discovery
- 100-mile rule: In most jurisdictions, a civil subpoena may be quashed if it requires a witness to travel or produce documents more than 100 miles from that person’s residence, place of employment or business
- Unreasonable response time: A subpoena that “fails to allow reasonable time for compliance” may be quashed. Although within the court’s discretion, a subpoena that seeks numerous records with only one week’s notice is generally considered to be unreasonable.
Substantive objections to a subpoena may encompass the following:
- Relevancy: A subpoena is valid only if the information sought is relevant to the subject matter and reasonably calculated to lead to the discovery of admissible evidence. The fact that the information may be inadmissible at trial does not make it irrelevant.
- Undue burden and expense: A subpoena can be quashed or modified if compliance will cause an “undue” burden or expense on the witness. What constitutes an “undue” burden or expense is a question for the court and requires specificity, not general allegations.
- Lack of possession, custody or control: A subpoena can only seek the production of documents that are under the “possession, custody or control” of the witness. Some courts have construed this phrase to include not only actual possession, but also documents that a witness can obtain on demand, such as bank records.
- Trade secrets and confidential information: A subpoena seeking trade secrets or confidential information may be quashed unless there is a substantial need for the information that cannot otherwise be met without undue hardship. The documents will then be produced only in accordance with a protective order that restricts or limits disclosure
- Privileges: Although most witnesses are aware of attorney-related privileges, there are many other privileges that may render a subpoena objectionable. Some jurisdictions have adopted an accountant-client privilege that protects communications to and from one’s accountant from disclosure. Also, the quality or peer review privilege prevents disclosure of health care provider records that have been prepared in connection with the quality review of physicians, nurses and other staff, and the self-critical analysis privilege is designed to encourage companies to engage in open investigations of their own possible wrongdoings. Not all jurisdictions have adopted these privileges and many federal courts have refused to recognize them. Nevertheless, privileges represent an important basis to object to a subpoena and can be waived if not asserted in a timely fashion.
2. Present objections
Once you have determined what objections exist to a subpoena, the next step is to present them. There are basically two ways in which to present objections. The first is serving a written list of all objections within 14 days after service of the subpoena or before the time specified for compliance if such time is less than the 14-day period. At that point, no further inspection of any requested documents can be made except pursuant to an order of court, which must protect the witness from “significant expense” resulting from the inspection or copying commanded. Failure to serve timely written objections ordinarily results in a waiver of all objections, including privilege.
Additionally, a witness may protect himself from an improper subpoena by filing a “timely” motion to quash or modify. Such a motion is “timely” if it is made at any time prior to the compliance date. Although modifying a subpoena seeking documents is common, it is rare to quash a subpoena seeking testimony from a witness. However, where it is clear beforehand that the subpoena seeks confidential business information that is irrelevant to the proceeding, it is an abuse of discretion not to quash the subpoena.
The last step that you must take in responding to a subpoena is to comply with those aspects that are not objectionable. A person subject to a subpoena is obliged to obey it. Failure to abide by a subpoena without “adequate excuse” may result in a finding of contempt and the imposition of fines and costs. Also, the court may issue a bench warrant in order to compel compliance.
The steps outlined above will help to reduce the risks or other serious consequences of ignoring or blindly complying with a subpoena. Moreover, following these steps, together with the advice set forth in parts I and II of this series, will enable you to properly respond to any subpoena that may be served upon your company in the future.