Attorney Strategies for Negotiating Federal Subpoena Terms

Attorney Strategies for Negotiating Federal Subpoena Terms

When a client receives a federal subpoena requesting documents or testimony, it can be a stressful and confusing time. Many folks don’t know how to respond or what rights they have. This article will discuss strategies attorneys use to negotiate federal subpoenas to protect their clients. We’ll talk about the law, and give examples of how lawyers argue to limit subpoenas.

What is a Federal Subpoena?

A federal subpoena is a request for someone to provide documents, or to testify at a deposition, hearing or trial [1]. Federal subpoenas are issued under the authority of the federal courts. They can be used in both civil and criminal cases.

For example, in a lawsuit between Company A and Company B, Company A’s lawyer could subpoena Company C for documents. Or in a criminal case, the prosecution could subpoena a witness to testify at trial.

Subpoenas are powerful legal tools. They carry the force of the court behind them. If someone ignores a subpoena, they could be held in contempt of court, and face fines or jail time [1]. So folks have to take subpoenas seriously.

Grounds for Challenging a Subpoena

Even though subpoenas are powerful, there are grounds to challenge them. Attorneys use the following arguments:

• The subpoena requests privileged information
• The subpoena imposes an undue burden
• The subpoena requests information not relevant to the case
• The subpoena was not properly served

Let’s break these down one-by-one.

Privileged Information

Certain types of information are protected by privilege. Common examples include attorney-client privilege, doctor-patient privilege, and spousal privilege [2]. If a subpoena requests privileged information, the attorney can argue it should be quashed or modified.

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For example, a subpoena to a doctor requesting all records about a patient would likely include communications protected by doctor-patient confidentiality. The patient’s attorney could file a motion arguing that the subpoena is overbroad and should be limited to non-privileged information.

Undue Burden

A subpoena can also be challenged if it imposes an “undue burden” on the recipient [1]. This means complying would be unreasonably expensive, time-consuming or difficult.

For example, a subpoena may request “all documents and communications regarding Product X for the past 10 years.” Gathering every single document about a product from the past decade could be extremely costly and labor intensive. The recipient’s lawyer could argue that the subpoena imposes an undue burden and should be limited to a shorter time period or narrower topic.

Not Relevant

Subpoenaed information must be relevant to the case at hand [3]. If a subpoena requests information unrelated to the dispute, attorneys can argue for it to be quashed or modified.

For instance, in a car accident lawsuit, a subpoena requesting all of a witness’s medical records could include irrelevant information. The witness’s attorney could move to limit the subpoena to just records related to injuries from the accident.

Improper Service

Finally, federal rules dictate how subpoenas must be served [1]. If service didn’t follow proper procedures, attorneys can argue the subpoena is invalid and should be quashed.

For example, if a subpoena was just emailed rather than personally served, the recipient’s lawyer could challenge service and request the subpoena be re-issued and re-served properly.

Negotiating with Opposing Counsel

The first step is often to contact the issuing attorney to discuss limiting or quashing the subpoena. Reasonable lawyers will work to resolve disagreements. Negotiating may avoid lengthy court battles.

If the issuing attorney refuses to compromise, the subpoena recipient can file a motion to quash or modify with the court. But first, working cooperatively is encouraged and can save everyone effort. Courts prefer parties resolve disputes themselves when possible.

When negotiating, attorneys point out flaws with the subpoena and propose reasonable modifications. The goal is crafting a subpoena that obtains necessary information without imposing an undue burden.

For example, if a subpoena is overbroad in what it requests or the time period covered, the attorney could propose limiting it to information directly relevant to the dispute. This allows the case to move forward while protecting the client.

Get an Attorney to Help

If you receive a federal subpoena, don’t ignore it. Hire an attorney to protect your rights. An experienced lawyer can carefully analyze the subpoena and determine if it contains any defects.

Your attorney can then contact the issuing party and negotiate reasonable modifications. If needed, they can file motions with the court outlining legal arguments for quashing or limiting the subpoena.

Having an attorney allows you to comply with valid parts of the subpoena, while protecting you from improper requests. This thoughtful approach is better than simply ignoring the subpoena altogether.

An attorney can also arrange the collection of documents or testimony in the least disruptive manner. They can work to minimize the burden on you or your company while satisfying legitimate discovery needs.

Specific Strategies Lawyers Use

When negotiating subpoenas, lawyers employ certain strategies based on the situation. Here are some examples:

• Propose a rolling production of documents over time instead of all at once
• Offer to produce documents in electronic form to make searching easier
• Request a protective order to keep sensitive documents confidential
• Seek to move the date, time or location of a deposition for convenience
• Limit the topics covered in a deposition to the core disputed issues
• Argue that requested materials can be obtained from other sources

Experienced counsel tailor their approach to each case. The goal is protecting the client’s rights while cooperating reasonably. Lawyers essentially seek a “win-win” for both sides.

What Happens if You Ignore a Subpoena?

It’s never a good idea to just ignore a federal subpoena. As mentioned earlier, this could lead to contempt of court charges. Fines and jail time are possible penalties.

An attorney can protect you from contempt while negotiating limitations. Simply failing to respond at all leaves you vulnerable to harsh sanctions.

In addition, ignoring a subpoena prevents you from objecting to improper requests early in the process. Silence doesn’t make overly broad demands somehow disappear.

So while a subpoena may contain unreasonable components, completely ignoring it only makes things worse. Let a lawyer file motions narrowing the subpoena’s scope while you comply with valid parts.

Subpoena Defense Lawyers Can Help

Receiving a federal subpoena can be scary. Don’t go it alone. Contact subpoena defense lawyers to protect your rights.

An experienced attorney will analyze the subpoena for any flaws. They’ll contact the issuing party to negotiate reasonable modifications.

If necessary, your lawyer can file motions with the court outlining legal arguments for limiting the subpoena. But very often, cooperating with opposing counsel resolves disputes.

With an attorney’s help, you can comply with valid parts of a subpoena while challenging improper requests. This thoughtful approach minimizes disruption to your life or business.

Don’t let a federal subpoena trigger fears of the unknown. Let capable counsel deal with it strategically. Seek experienced legal advice as soon as possible after getting served.

Conclusion

Federal subpoenas carry legal obligations that must be taken seriously. However, grounds exist for challenging overbroad or unduly burdensome requests.

Experienced attorneys employ proven strategies for negotiating federal subpoenas. They work cooperatively with opposing counsel to craft reasonable compromises.

If you receive a federal subpoena, contact a lawyer right away. With sound legal advice, you can respond properly while protecting your rights.

Citations

[1] Federal Rules of Civil Procedure 45

[2] Federal Rules of Evidence 501

[3] Federal Rules of Evidence 401