Options for Companies Unable to Meet Federal Subpoena Deadlines

Options for Companies Unable to Meet Federal Subpoena Deadlines

Getting hit with a federal subpoena can be a stressful and challenging situation for any company. While federal subpoenas are powerful investigative tools that require recipients to produce documents, provide testimony, or both, companies that receive them are not powerless. There are options available for companies that find themselves unable to meet federal subpoena response deadlines for legitimate reasons.

Understand the Rules

The first step is to understand the requirements and deadlines imposed by the Federal Rules of Civil Procedure (FRCP) Rule 45, which governs federal subpoenas in civil litigation. Some key provisions include:

• The subpoena must command production of documents or testimony by a specific date and time (the “return date”) [1].
• Objections to the subpoena generally must be served in writing before the earlier of the return date or 14 days after service of the subpoena[1][2].
• Motions to quash or modify a subpoena must also generally be filed before the return date[1].

Failure to object or move to quash within the time limits means objections are waived[1]. So it is critical to calendar both the return date and the earlier objection deadline when a federal subpoena is received.

Assess Your Situation

Once you understand the applicable deadlines, assess the scope of the requests and your ability to respond in time. Some considerations include:

• How many documents are requested? What types (paper, electronic, etc.)?
• How readily accessible are the records? Can they be gathered and reviewed before the return date?
• Are any of the requests objectionable (overly broad, unduly burdensome, privileged, etc.)?
• Do you need clarification on any unclear or ambiguous requests?
• Are extensions of time needed to comply fully?

Answering these questions will help determine what objections, motions, or extension requests may be needed[2]. The goal is to make a timely and good faith effort to communicate about what you can and cannot produce by the return date.

Request an Extension

If the return date simply does not allow sufficient time to respond fully, first consider requesting an extension from the party that issued the subpoena. While they are not obligated to grant an extension, many parties will if the request is reasonable and made in good faith[3]. Specify the amount of additional time needed and the reasons why, such as volume of records requested or personnel availability. Document the request in writing.

If the requesting party declines the extension request, you can file a motion for an extension with the court. Explain why the return date imposes an undue burden and how much additional time is needed to respond[3]. Emphasize any efforts you have made to negotiate an extension with the requesting party.

Make Timely Objections

When any part of the subpoena is improper or unduly burdensome, specific objections must be made in writing before the objection deadline[4]. Common objections include:

• Scope – the requests are overbroad or seek irrelevant information.
• Undue burden – compliance would impose unreasonable costs/burdens.
• Privileged/confidential – the requests encompass protected information.
• Indefinite time period – no reasonable time limitations are given.

The objections should clearly explain all grounds for objection and cover each improper or unreasonable request[4]. Blanket objections are discouraged. Support each objection with specifics about how the request is deficient and burdensome. Send the objections to the issuing party and keep a record of service.

File Motion to Quash or Modify

For objections the requesting party will not accommodate, promptly file a motion to quash or modify the subpoena in the court where compliance is required[5]. The motion should:

• Identify each disputed request.
• Explain why it is unreasonable, improper, ambiguous, or unduly burdensome.
• Propose modifications to cure defects (narrower scope, reasonable time period, etc.).
• Emphasize attempts to resolve disputes with the issuing party.

Supporting affidavits or other evidence can help demonstrate undue burden or cost[5]. Courts are required to protect non-parties from significant expense resulting from compliance[1]. Keep conferring with the issuing party to resolve disputes and narrow issues while the motion is pending.

Produce What You Can by the Return Date

Only portions of a subpoena subject to a timely objection or motion to quash are suspended while disputes are resolved[5]. For all other requests, produce responsive, non-privileged documents and information by the original return date, or seek an extension of time[4]. Producing some responsive records helps show a good faith effort to comply.

Argue Against Contempt

If you have made good faith efforts to communicate about objections and limitations, yet are still unable to fully comply with the subpoena by the return date, the court has discretion to avoid contempt findings[4][6]. Emphasize factors like:

• You conferred with the issuing party to narrow requests.
• You produced all non-objectionable documents by the deadline.
• You promptly moved to quash or modify improper requests.
• You requested extensions of time where needed.

Show that you did not ignore the subpoena or act in bad faith, but made responsible efforts to comply despite limitations. Courts favor resolving disputes on the merits rather than punishing inadvertent non-compliance[4].

Negotiate a Protective Order

If a company is concerned that producing documents in response to a subpoena may reveal confidential or proprietary information, it can seek a protective order from the court[1]. This is a court order limiting access to sensitive material produced during discovery. To obtain a protective order:

• Confer with the party issuing the subpoena to see if an agreement can be reached about protecting confidential information. See if the scope of the requests can be narrowed or if redactions, anonymization, or limitations on access would address concerns.
• If no agreement is reached, file a motion for a protective order explaining the need to protect confidential business information or trade secrets[2]. Support the motion with specific examples of how disclosure would harm competitive standing or violate privacy rights.
• Propose provisions that restrict access to certain documents to outside counsel only or prevent use of the information beyond the litigation[3]. Suggest ways sensitive info can be produced through designated confidential exhibits or redacted documents.
• Offer to produce documents subject to an “Attorneys’ Eyes Only” protective order as an alternative to objections or motions to quash[4]. Emphasize willingness to disclose information so long as confidentiality is preserved.

Courts balance the right to obtain discovery against the need to protect confidentiality when deciding whether to issue a protective order[5]. Being proactive about proposing reasonable restrictions on access can increase the chances confidential information can be produced without waiver of trade secret protection or privileges.