How Corporations Respond to Subpoenas for Company Records

Getting a subpoena can be scary for a business. You might worry you have to hand over private company info or get in trouble if you don’t comply. But you do have options to push back on requests that seem too broad or burdensome. While you can’t ignore a subpoena, working with a lawyer can help make sure you meet your legal duties without compromising sensitive data.

What is a Subpoena?

A subpoena is a legal document issued by a court that demands a person or company turn over information related to a court case. Subpoenas are used to get evidence like company records, emails, or witness testimony. They can be issued in civil lawsuits, criminal cases, and government investigations.

There are two main types of subpoenas:

• A subpoena ad testificandum requires you to testify as a witness, like at a deposition.
• A subpoena duces tecum tells you to turn over documents or records.

Subpoenas are serious legal demands. If you don’t comply, the court can hold you in contempt, which could mean fines or even jail time.

Responding to a Subpoena as a Non-Party

If your company is not a party in the lawsuit, you may have more options than a defendant or plaintiff for objecting to a subpoena. As a non-party, you can argue the subpoena is:

• Overly broad or burdensome
• Seeking irrelevant information
• Privileged or confidential

For example, in Trenton Renewable Power v. Denali Water Solutions, the court said parties to a lawsuit can be required to turn over a wide range of documents. But more limits apply to subpoenas to non-parties^[1].

Get Legal Advice

Don’t ignore a subpoena, but don’t just hand over records either. Talk to a lawyer about your options. They can review the subpoena and determine if it’s valid or overly broad. They can also negotiate with the party to limit the request or protect confidential info^[2].

Meet Deadlines

Subpoenas list when the records are due. If you need more time, ask the court to extend the deadline. But don’t wait until the last minute. Missing a deadline could lead to sanctions^[2].

Limit Access

Try to reach an agreement to limit who can view sensitive documents. For example, you may be able to designate records “attorney’s eyes only.” You can also ask the court to seal particularly confidential records^[5].

Follow Procedures

There are specific rules for objecting to a subpoena or asking a judge to quash it. Follow the process to avoid penalties. For example, you may need to get a protective order from the court^[4].

Produce Records Responsibly

Remove info not requested in the subpoena. Only turn over records covering the timeframe specified. Follow court rules for organizing and labeling documents. Trying to bury key records could backfire^[4].

Designate a Witness

If asked to testify, pick a knowledgeable representative. Prepare them to avoid revealing privileged info accidentally. Limit their testimony to the topics in the subpoena^[4].

Get Approval to Disclose

If records contain private customer or employee info, check if you need consent to release it. Improperly disclosing medical or financial records could violate privacy laws^[5].

Protect Trade Secrets

Trade secrets warrant extra precautions. Ask to identify such docs “confidential” and restrict access. Get a protective order if needed. Or provide summaries instead of actual documents^[5].

Preserve Records

Once you know records may be subpoenaed, preserve them. Destroying them prematurely could obstruct justice. Set a litigation hold to retain email, texts, files, etc^[6].

Notify Employees

If asked for personnel files, consider warning employees their records were subpoenaed. This gives them a chance to object or seek to limit the scope^[6].

Charge Reasonable Fees

You can recover “reasonable” costs of complying with a subpoena, like copying and mailing records. But don’t inflate fees in hopes of deterring the request^[5].

Refusing to Comply

If you still object after negotiating limits, you can file a motion to quash the subpoena. But this should be a last resort. The court may order you to comply and impose sanctions^[2].

Fighting a subpoena takes time and money. Weigh the risks and costs before refusing to cooperate altogether. In many cases, compliance with reasonable limits may be preferable.

Getting a subpoena can disrupt your business. But understanding your responsibilities – and your rights – makes it easier to respond appropriately. With help from counsel, you can protect confidential information while providing relevant records.

References

1. Trenton Renewable Power v. Denali Water Solutions, Justia, 2022
2. Know the Law: Subpoenas for Company Records, McLane Middleton, 2019
3. Your Company Receives a Subpoena – What Now?, Pharmacy Times, 2021
4. Know the Law: Subpoenas Directed at Companies, McLane Middleton, 2022
5. Best Practices and Considerations in Responding to Subpoenas, Parsons Behle & Latimer, 2021
6. Responding to Subpoenas for Employee Records, Shaw Law Group, 2022