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Responding to Federal Subpoenas for Electronically Stored Information

March 21, 2024 Uncategorized

Responding to Federal Subpoenas for Electronically Stored Information

Getting a subpoena can be scary. A subpoena is a legal order to hand over information. This article talks about how to respond when you get a federal subpoena asking for electronically stored information. We’ll go over the rules and give some tips.

What is a subpoena?

A subpoena is a legal document that orders someone to provide information or show up to testify. It is issued by a court. The court uses subpoenas to get evidence for trials and investigations [1].

There are two main types of subpoenas:

  • A subpoena ad testificandum orders someone to testify at a trial, hearing, or deposition.
  • A subpoena duces tecum orders someone to provide documents, electronically stored information, or physical evidence.

This article focuses on subpoenas duces tecum asking for electronically stored information (ESI).

What is electronically stored information?

Electronically stored information (ESI) is any data saved in an electronic format. This includes emails, texts, instant messages, voicemails, social media, website content, and information stored on computers, phones, tablets, and other devices [2].

ESI could be relevant evidence in legal cases. So courts can subpoena it.

Complying with a federal ESI subpoena

If you get a federal subpoena asking for ESI, you must comply. But there are rules about how to properly respond. We’ll break them down here.

Christine Twomey
Christine Twomey
2024-03-21
Just had my Divorce case settled 2 months ago after having a horrible experience with another firm. I couldn’t be happier with Claire Banks and Elizabeth Garvey with their outstanding professionalism in doing so with Spodek Law Group. Any time I needed questions answered they were always prompt in doing so with all my uncertainties after 30 yrs of marriage.I feel from the bottom of my heart you will NOT be disappointed with either one. Thanks a million.
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Brendan huisman
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Alex Zhik contacted me almost immediately when I reached out to Spodek for a consultation and was able to effectively communicate the path forward/consequences of my legal issue. I immediately agreed to hire Alex for his services and did not regret my choice. He was able to cover my case in court (with 1 day notice) and not only was he able to push my case down, he carefully negotiated a dismissal of the charge altogether. I highly recommend Spodek, and more specifically, Alex Zhik for all of your legal issues. Thanks guys!
Guerline Menard
Guerline Menard
2024-03-18
Thanks again Spodek law firm, particularly Esq Claire Banks who stood right there with us up to the finish line. Attached photos taken right outside of the court building and the smile on our faces represented victory, a breath of fresh air and satisfaction. We are very happy that this is over and we can move on with our lives. Thanks Spodek law 🙏🏼🙏🏼🙏🏼🙏🏼🙌🏼❤️
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2024-03-15
Believe every single review here about Alex Z!! From our initial consultation, it was evident that Alex possessed a profound understanding of criminal law and a fierce dedication to his clients rights. Throughout the entirety of my case, Alex exhibited unparalleled professionalism and unwavering commitment. What sets Alex apart is not only his legal expertise but also his genuine compassion for his clients. He took the time to thoroughly explain my case, alleviating any concerns I had along the way. His exact words were “I’m not worried about it”. His unwavering support and guidance were invaluable throughout the entire process. I am immensely grateful for Alex's exceptional legal representation and wholeheartedly recommend his services to anyone in need of a skilled criminal defense attorney. Alex Z is not just a lawyer; he is a beacon of hope for those navigating the complexities of the legal system. If you find yourself in need of a dedicated and competent legal advocate, look no further than Alex Z.
Taïko Beauty
Taïko Beauty
2024-03-15
I don’t know where to start, I can write a novel about this firm, but one thing I will say is that having my best interest was their main priority since the beginning of my case which was back in Winter 2019. Miss Claire Banks, one of the best Attorneys in the firm represented me very well and was very professional, respectful, and truthful. Not once did she leave me in the dark, in fact she presented all options and routes that could possibly be considered for my case and she reinsured me that no matter what I decided to do, her and the team will have my back and that’s exactly what happened. Not only will I be liberated from this case, also, I will enjoy my freedom and continue to be a mother to my first born son and will have no restrictions with accomplishing my goals in life. Now that’s what I call victory!! I thank the Lord, My mother, Claire, and the Spodek team for standing by me and fighting with me. Words can’t describe how grateful I am to have the opportunity to work with this team. I’m very satisfied, very pleased with their performance, their hard work, and their diligence. Thank you team!
Anthony Williams
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2024-03-12
Hey, how you guys doing? Good afternoon my name is Anthony Williams I just want to give a great shout out to the team of. Spodek law group. It is such a honor to use them and to use their assistance through this whole case from start to finish. They did everything that they said they was gonna do and if it ever comes down to it, if I ever have to use them again, hands-down they will be the first law office at the top of my list, thank you guys so much. It was a pleasure having you guys by my side so if you guys ever need them, do not hesitate to pick up the phone and give them a call.
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2024-03-12
Very professional, very transparent, over all a great experience
Bee L
Bee L
2024-02-28
Amazing experience with Spodek! Very professional lawyers who take your case seriously. They treated me with respect, were always available, and answered any and all questions. They were able to help me very successfully and removed a huge stress. Highly recommend.
divesh patel
divesh patel
2024-02-24
I can't recommend Alex Zhik and Spodek Law Firm highly enough for their exceptional legal representation and personal mentorship. From the moment I engaged their services in October 2022, Alex took the time to understand my case thoroughly and provided guidance every step of the way. Alex's dedication to my case went above and beyond my expectations. His expertise, attention to detail, and commitment to achieving the best possible outcome were evident throughout the entire process. He took the time to mentor me, ensuring I understood the legal complexities involved to make informed decisions. Alex is the kind of guy you would want to have a beer with and has made a meaningful impact on me. I also want to acknowledge Todd Spodek, the leader of the firm, who played a crucial role in my case. His leadership and support bolstered the efforts of Alex, and his involvement highlighted the firm's commitment to excellence. Thanks to Alex Zhik and Todd Spodek, I achieved the outcome I desired, and I am incredibly grateful for their professionalism, expertise, and genuine care. If you're in need of legal representation, look no further than this outstanding team.

Preserve the ESI

As soon as you get the subpoena, you must preserve any ESI that could be relevant [4]. This means you can’t delete or destroy anything that the subpoena asks for. You must keep it safe until the case is over.

Object in writing

If you think the subpoena is inappropriate or too burdensome, you can object in writing. You must explain your reasons. The deadline to object is usually within 14 days [5].

Negotiate a solution

If you object, the lawyers may negotiate changes to the subpoena. For example, they may agree to narrow the request or give you more time.

File a motion to quash

If you can’t reach an agreement, you can file a motion to quash in court. This asks the judge to cancel or modify the subpoena. You need strong legal arguments for why it’s unreasonable [5].

Comply within the time limit

If your objections fail, you must comply with the subpoena. The deadline is usually within 30 days. Ask for an extension if you need more time [1].

Follow the format rules

For ESI, the subpoena may specify a format for production. Common options are:

  • Native format – The original files exactly as they are kept in the ordinary course of business.
  • PDF – Converting files to PDF format.
  • Load files – Producing data so it can be uploaded into document review platforms.

If no format is specified, produce the ESI as you keep it in the ordinary course of business or in a reasonably usable form [3].

You only have to produce ESI in one format, unless the subpoena says otherwise [1].

Use the right procedures

Follow these steps when collecting ESI to produce [2]:

  1. Gather emails by searching mailboxes and archives.
  2. Collect texts, IMs, and voicemails from mobile devices.
  3. Pull social media content using APIs or screenshots.
  4. Run keyword searches across local files and network drives.
  5. Collect website content via scraping or backups.
  6. Preserve metadata like dates and authors.

Use write blockers when creating forensic images of devices. This prevents accidentally modifying data.

Include a certificate of compliance

Your ESI production should include a written certification that you have fully complied with the subpoena. This protects you from accusations of withholding information.

Get help from a lawyer

Responding to a federal subpoena is complicated. Getting legal help is recommended. A lawyer can advise you on the rules and protect your rights.

Penalties for noncompliance

It’s risky to ignore a subpoena. The court can hold you in contempt. Penalties include fines or even jail time in serious cases.

You could also be sued for damages if your actions hurt one of the parties in the case.

Conclusion

Federal subpoenas for ESI are serious business. Follow the rules for preserving, objecting, and producing documents. Get legal help to ensure compliance. This will protect you from penalties down the road.

References

[1] Rule 45. Subpoena | Federal Rules of Civil Procedure | US Law – Law.Cornell.Edu
[2] Rule 34. Producing Documents, Electronically Stored Information, and Tangible Things, or Entering onto Land, for Inspection and Other Purposes | Federal Rules of Civil Procedure
[3] [PDF] Subpoena to Produce Documents, Information, or Objects Or to permit Inspection of Premises in a Civil Action – U.S. Courts
[4] [PDF] Responding to a Subpoena (Federal) – Weil, Gotshal & Manges LLP
[5] The Basics of Responding to Third-Party Subpoenas in Federal Court

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