Responding to Federal Subpoenas for Business Records or Documents

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Last Updated on: 2nd October 2023, 05:52 pm

 

Responding to Federal Subpoenas for Business Records or Documents

Getting a subpoena for business records or documents can be intimidating. What do you do next? Don’t panic. Take a deep breath. Read through the subpoena carefully and make sure you understand what is being asked of you. This article will walk you through the key steps and considerations when responding to a federal subpoena.

What is a Subpoena?

A subpoena is a legal document issued by a court that compels someone to produce documents, records, or other evidence relevant to a legal proceeding [1]. There are a few key types:

• Subpoena Duces Tecum – requires you to produce documents or records
• Subpoena Ad Testificandum – requires you to testify at a proceeding
• Subpoena for Deposition – requires you to sit for a deposition

This article focuses on responding to Subpoenas Duces Tecum, which ask for documents or records.

Carefully Review the Subpoena

The first step is to thoroughly review the subpoena so you understand what is being requested. Make sure to look at:

• Who issued the subpoena?
• What court is it coming from?
• What case is it related to?
• Who does it ask for records about?
• What types of records or documents are requested?
• What time periods do the requests cover?
• When is the deadline to respond?
• Where are the records requested to be produced?

You want to make sure you have a complete understanding of what is being asked for so you can properly respond. If anything is unclear, consider reaching out to the issuing party for clarification.

Notify Leadership and Legal Counsel

Once you understand the subpoena, notify leadership in your organization as well as legal counsel. Your legal team will help assess any legal issues and determine next steps. Some key questions they will help analyze:

• Are there any grounds to contest or quash the subpoena?
• What are the risks of not complying?
• What protocols or precautions should we take in producing sensitive documents?
• Should we reach out to the issuing party to modify the requests?

Getting your legal team involved early is important to make sure you respond appropriately.

Preserve Relevant Documents

Once a subpoena is received, you have a duty to preserve any documents that may be responsive [3]. This means suspending any routine document destruction policies and putting a legal hold on deleting relevant records.

Gather the documents specified in the subpoena from all locations they reside – including email, servers, laptops, cloud storage, etc. Be sure to collect records from the time periods covered by the requests. You want to cast a wide net at this stage to make sure no responsive documents are missed.

Review and Organize the Documents

Now comes the process of reviewing everything that’s been collected to identify what is truly responsive to the subpoena. This can be tedious but is important. You’ll want to remove any duplicates and non-relevant documents.

The records should then be organized in a logical manner. Rule 45 states that documents must be produced “as they are kept in the ordinary course of business” or organized and labeled to correspond with the categories in the requests [1].

For example, you may group documents by:

• Custodian
• Date
• Topic
• Request number

Come up with a system that makes sense based on the records. The goal is to make it easy for the requesting party to find what they need.

Consider Objecting

Are there certain requests in the subpoena you think are inappropriate or burdensome? You may be able to file formal objections.

Some common reasons for objecting include [2]:

• Requests are irrelevant to the case
• Requests are overly broad or vague
• Compliance would be unduly burdensome/expensive
• Requests seek privileged or confidential information

There is usually a designated time frame spelled out in the subpoena for submitting objections, such as within 14 days. Consult your legal team about the basis for any objections and your options.

Negotiate the Scope

Rather than formally objecting, you may also try to negotiate with the issuing party to narrow the scope of the requests or modify the subpoena. This can save time and expense for both sides [5].

Some examples of negotiating:

• Asking for a longer time period to respond
• Excluding certain confidential documents
• Limiting the date ranges
• Sampling a subset of records first

See if you can work constructively with the other side to reach an agreement that satisfies both parties.

Produce the Documents

Once you have identified the final set of responsive documents, it’s time to produce them by the deadline. There are two main options for production:

• Paper: Print and deliver paper copies of the records to the designated location.
• Electronic: Produce the documents in a commonly used digital format on a CD, flash drive, or secure online repository.

Electronic production has become more common, but check the subpoena for any production specifications. Make sure to label all materials clearly and maintain a copy of what was produced for your records.

You may also need to prepare and sign an affidavit stating that you conducted a diligent search and are producing all responsive documents. An incomplete or improper production could lead to court sanctions.

Comply Carefully

While responding to a subpoena can be a burden, it’s important to take it seriously. Non-compliance can lead to contempt charges or other penalties from the court [6]. Fines or jail time are rare but possible for willful non-compliance.

You want to make a good faith effort to comply, even if you object to certain portions. Be thorough in your response and carefully follow the rules. This will show the court you are trying to cooperate within the bounds of the law.

Get Help if Needed

Responding to a subpoena can be complex, especially if you object or negotiate scope. Don’t hesitate to enlist help from legal counsel, compliance teams, or consultants that specialize in subpoena response. The investment upfront can pay dividends in efficiency and risk mitigation.

You may also need help from IT if collecting and producing a large volume of electronic documents. Work with professionals experienced in gathering forensic data and reviewing it for responsiveness.

In Summary

Receiving a federal subpoena for business records can be intimidating but doesn’t have to be scary. Just remember these key steps:

1. Review the subpoena carefully
2. Notify company leadership and legal counsel
3. Preserve all potentially relevant documents
4. Organize records and review for responsiveness
5. Consider objecting or negotiating scope
6. Produce documents by the deadline
7. Comply fully and in good faith
8. Get help if you need it!

While subpoenas create extra work, they are just part of the legal process. Stay calm, develop a plan, and execute it thoroughly. This will put you in the best position with the court.