NATIONALLY RECOGNIZED FEDERAL LAWYERS
Last Updated on: 21st January 2024, 10:46 pm
What To Do When Your Business Gets Subpoenaed
Getting a subpoena as a business can be an intimidating and stressful situation. You may feel anxious about what information is being requested, unsure of how to properly respond, and concerned about the legal implications if you make a mistake. This article provides practical guidance on how to thoughtfully and strategically respond when your business gets subpoenaed.
Understanding the Subpoena
The first step is to carefully review the subpoena to understand what is being asked of you. Here are some key things to look for:
- What records are being requested? The subpoena should clearly state what corporate records, documents, communications, or other information is being requested. Make sure you understand the full scope of what they are asking for.
- Who is the requesting party? This will tell you which individual, government agency, or company initiated the subpoena. Knowing the source can provide helpful context.
- What is the deadline to respond? There is typically a specific date by which you need to provide the requested records. Make sure to note this deadline and give yourself enough time to properly gather everything.
- Has a deposition or testimony been requested? In some cases, in addition to documents, you may be asked to provide sworn testimony about the requested records or about specific topics related to your business.
Thoroughly understanding these key details allows you to strategize your response appropriately. If anything about the subpoena is unclear, consult your legal counsel for guidance.
Carefully Evaluating the Request
The next step is determining how and if you should comply with the various elements of the request. Here are several factors to consider:
- Is any of the information privileged or confidential? Certain communications and documents may be protected by attorney-client privilege, executive privilege, trade secrets protections, or other confidentiality rules .
- How burdensome is it gather everything? Complying with a subpoena can be a substantial undertaking, especially if expansive amounts of data or files are requested. Understanding the scope of work can help you plan your response.
- Are any records protected by privacy regulations? Depending on your industry, you may need to take privacy precautions around personal data related to customers, patients, students or other groups .
- Could any materials be incriminating if turned over? While withholding subpoenaed information can create legal liability, in certain cases you may want to object based on self-incrimination concerns or other risks .
Thinking through these elements allows you to take a measured approach about which aspects of the subpoena you will comply with, push back on, or file a petition against.
Crafting Your Response Strategy
Once you have thoroughly reviewed the subpoena and determined what you must, should or cannot realistically provide, it’s time to craft your response strategy. This involves both preparing your actual production of records as well as communicating with the requesting party about your plans.Here are some tips:
- Be timely. Respond by the deadline and ask for extensions sparingly and only when truly needed. Delaying your response without permission can lead to contempt charges.
- Communicate about objections. If you plan to not comply with or contest certain portions of the request, promptly reach out to the requesting party, explain your reasons and see if a compromise can be reached.
- Negotiate the scope if overly burdensome. If gathering all the materials would be unreasonably time-consuming or disruptive to your business, seek to narrow the request to a more manageable subset of critical records.
- Maintain meticulous records. Keep a detailed log of every file and record you produce so you can easily reference later what was provided.
- Use proper delivery methods. Follow designated protocols for transmitting records digitally or physically delivering printed documents. Get signed proof of delivery.
Following these best practices allows you to thoughtfully respond to the subpoena request while also protecting your legal rights and interests should the need arise.
Understanding Your Legal Obligations
While each subpoena differs in what is seeks and what laws are in play, as a business you generally have certain baseline legal responsibilities when served with a subpoena:
- Provide truthful, complete and accurate responses. Intentionally omitting or falsifying records can open you up to perjury, obstruction of justice or related charges .
- Follow proper formats and protocols for production as outlined in the request. For example, specific filing systems, data formats, or indexing may be required.
- Adhere to reasonable deadlines for gathering records or providing testimony. Requests for reasonable extensions are sometimes granted but should not be abused.
- Allow inspection if asked to provide access to certain business documents or materials on your premises.
- Prevent record tampering or destruction. Intentionally hiding, altering or destroying requested records after being served can trigger serious criminal liability.
While subpoenas inherently feel intrusive, following these basic legal obligations can help your business avoid substantial penalties down the road.
Getting Legal Guidance
Given the high legal stakes, it is always advisable to involve counsel when your business receives a subpoena. An attorney can help by:
- Reviewing the full subpoena request and clarifying any ambiguities
- Advising on any records that may be privileged or otherwise objectionable
- Negotiating with the requesting party on the scope of records
- Ensuring the proper protocols are followed to assert protections over confidential data
- Crafting a strategic plan to timely comply with legally enforceable aspects
- Representing you if a legal dispute arises over your response
Navigating subpoenas can be complex, but working with knowledgeable legal counsel makes the process substantially less daunting. They can offer guidance tailored to your situation so that your business avoids missteps.
What Happens After You Respond
Once you respond to the subpoena, either by providing records or giving testimony, your active role may be over, but additional legal activity may follow, depending on the situation:
- Additional follow-up subpoenas may be issued if your initial production prompts new questions.
- Your records may contribute to the investigation of your business or be used as evidence in a filed case.
- You may need to appear in court or provide additional witness testimony about the materials you produced.
- If you failed to respond adequately, contempt charges or other enforcement actions may be pursued against you.
While it can be unsettling not to know how your records will be used, by diligently responding to the subpoena you can have confidence that your business fulfilled its legal duties. In the meantime, continue operating as normal while the requesting parties determine their next steps.
Getting subpoenaed as a business leader feels disruptive, but by understanding your obligations, evaluating the requests strategically, involving legal counsel, and thoughtfully responding, you can protect both your company’s interests and rights. With the practical guidance above, businesses can appropriately handle a government or legal subpoena. Stay calm, be cooperative with legitimate demands, and let experienced attorneys guide you through objections and negotiations. This balanced approach allows you to maintain control through an uneasy legal situation.