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.
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.