Responding to Federal Subpoenas for Electronically Stored Information

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.

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