How to Respond to a Civil Subpoena for Documents

How to Respond to a Civil Subpoena for Documents

Getting served with a subpoena can be intimidating. You may be wondering, what is this? What does it mean? What do I have to do? This article will walk you through the basics of understanding and properly responding to a civil subpoena for documents so you can get through it as smoothly as possible.

What is a Subpoena?

A subpoena is a legal document issued by a court that compels someone to produce documents, appear and testify at a deposition, hearing or trial, or sometimes both. Subpoenas are used by parties in a lawsuit to obtain evidence and information from both parties to the lawsuit as well as non-parties, also called third parties.

There are a few types of subpoenas:

• Subpoena Duces Tecum – requires you to produce documents
• Subpoena Ad Testificandum – requires you to appear and testify
• Subpoena for Deposition – requires you to appear and provide testimony under oath

This article focuses specifically on responding to a civil subpoena duces tecum, which requires you to search for, locate, and produce documents responsive to the subpoena’s requests.

Don’t Panic

It’s understandable to feel anxious or stressed when you receive a subpoena out of the blue, especially if you’ve never dealt with one before. Try to take a deep breath though – responding is manageable if you break it down into steps. While subpoenas can seem scary and urgent, you typically have at least 10-20 days to respond, so you do have time to thoughtfully address it.

Read it Carefully

The first thing you should do is read through the subpoena very closely to understand what exactly is being asked of you. Here are some key things to look for:

• The deadline – Make note of when you have to produce the documents by so you can plan accordingly.
• What documents are being requested – The subpoena should list out specific types of documents being requested. Read this carefully.
• Time period – Often the requests will specify a time frame for the documents being requested.
• Who to produce the documents to – The subpoena will specify a person, law firm, or entity for you to produce the documents to.
• Location of production – This states where you need to produce the documents, typically an address will be provided.

You want to get very clear on what exactly is being asked for so you can respond appropriately. Don’t ignore or skim over the subpoena – give it a thorough read.

Notify Anyone That May Be Impacted

Before you start gathering any documents, think about notifying anyone that may be impacted by the subpoena.

If it’s for business records, you may need to notify your employer so they are aware and can assist with locating responsive documents. For personal records, you may need to give family members a heads up that you’ll be searching through files.

If there are any confidentiality issues surrounding the records being requested, you may need to get consent from the relevant parties before producing documents that contain sensitive information.

Do Not Destroy or Alter Any Documents

It can be tempting to go through your records and shred or delete anything that looks potentially relevant to the subpoena. However, this would be unlawful. You have a duty to preserve all documents that may be responsive.

Once you’ve been served the subpoena, you must not destroy or modify any relevant documents, or else you could face court sanctions or obstruction charges.

Gather All Potentially Relevant Documents

Now it’s time to start gathering all documents that could possibly be responsive to the requests in the subpoena. It’s better to over-collect here so you can review and pare down later.

Make sure to look through both paper and electronic files. This includes emails, digital documents, text messages, voicemails, and cloud storage. If you’re not sure where to start, talk to your employer’s IT team or legal department and they can help guide the search.

As you gather documents, keep them organized, such as sorted into folders by subject or chronological order. This will make it easier when it comes time to review and produce them.

Review the Documents

Now comes the process of actually reviewing all the documents you’ve gathered to determine what is responsive to the subpoena and what can be withheld. Here are some guidelines on reviewing:

• Re-read the subpoena closely – Get clear on exactly what is being requested and for what time period so you can accurately determine responsiveness.
• Remove irrelevant documents – If a document does not fit within the scope of what’s being requested in the subpoena, set it aside.
• Watch for privilege – Documents covered by attorney-client privilege, work product doctrine, and other privileges do not need to be produced, but you must assert the privilege.
• Redact where necessary – If a document contains confidential personal information not relevant to the case, you can redact those portions.

If you have any questions about whether a certain document should be produced or if a privilege applies, it’s best to consult with an attorney.

Produce Responsive, Non-Privileged Documents

Once you’ve completed your review and narrowed down the documents, it’s time to produce the responsive, non-privileged ones to the party who issued the subpoena.

Be sure to organize and label the documents so it’s clear what’s being produced. Include a cover letter that identifies each document by name and explains any non-produced documents that were withheld for privilege.

Send the production by the deadline and using the method specified in the subpoena – typically mail or email. Be sure to get delivery confirmation so you have proof of producing the documents on time.

Object If You Have Concerns

If you have objections to the subpoena, such as believing it asks for irrelevant documents or is unreasonable in scope, you can file formal objections with the court. Talk to an attorney right away if you want to consider filing objections.

You would still need to respond timely to the parts of the subpoena you do not object to while your objections are considered.

Get Legal Advice

Because subpoenas involve legal obligations, it’s always advisable to consult with an attorney to ensure you are responding appropriately. An attorney can advise you on objections, privileges, deadlines, and any other questions that come up.

While you can take initial steps like gathering and reviewing documents, it’s best to have an attorney review your planned production before it goes out. This helps avoid any missteps.

Follow Up as Needed

Even after you’ve produced documents, the subpoenaing party may come back to you with additional requests or questions. Be responsive to these follow-ups and provide any clarification needed. You may need to appear at a deposition to testify about the documents you produced.

Continue to preserve relevant documents in case more end up being requested. Destroying them after an initial production could put you at risk of court sanctions.

By following this process, you can properly comply with a civil subpoena for documents. While it represents additional work, being diligent reduces risk down the road. With the right focus and legal guidance, you can get through it smoothly.

References

Answers to FAQs Responding to a Subpoena – Illinois Association of School Boards

Top Tips for Responding to a Subpoena – Morse Law Firm

How to Respond to a Third-Party Subpoena for Documents – Legal.io

3 Ways to Respond To a Subpoena – wikiHow

Third-Party Subpoena Response – Logikcull

How to Respond to a Subpoena: 10 Things You Should Do Immediately – Orrick Law Firm