That growth in electronic documents threatens to break the discovery process. The only solution is to use equally disruptive technology to tame the challenges of modern discovery. Third-party subpoenas often require a similar approach as discovery during litigation.
Such subpoenas allow parties in civil litigation to obtain evidence, including documents and testimony, from individuals or organizations who are not part of the lawsuit—that is, from third parties. A subpoena duces tecum or a subpoena for documents is a court order that requires a third party to produce documents. It is different from a subpoena for testimony, or subpoena ad testificandum, because it does not require the party to give testimony.
A subpoena is a court order, so if you fail to comply with a valid subpoena you may be held in contempt of court. As a result, you should prepare to respond to a subpoena fully—even if you plan on challenging the subpoena later. That means notifying custodians and preserving all the documents that may be subject to the subpoena just as you would when instituting a legal hold in litigation.
Engaging in an early assessment of your data can also help you get an understanding of what kind of information may be subject to the subpoena and what your review and production process will require. However, you may not need to comply with every subpoena.
You can object to the subpoena in writing, move to quash or modify a subpoena, or contact the adverse party in the lawsuit who may challenge the subpoena as well. Informal negotiations with the issuing party or seeking to shift the costs of responding to that party can also limit the scope of the subpoena, if not relieve you of responding to it altogether. We discuss these strategies in more depth below.
Federal Rule of Civil Procedure 45 , along with related caselaw, provides the framework for third-party subpoena response in federal civil litigation. The first three subsections of FRCP 45 establish the general requirements for issuing a subpoena, including its form and contents subsection a , service subsection b , and place of compliance subsection c.
Objections to third-party subpoenas are governed by FRCP 45 d 2 B , which specifies that such objections must be made within 14 days after the subpoena is serviced. For a motion to quash or modify a subpoena, FRCP 45 d 3 establishes two burden-shifting tests, one for objections based on undue burden and one for those based on the disclosure of trade secrets. Learn how to stay on top when the other side has a few tricks up their sleeve.
Responding to a subpoena for documents is not too different from responding to a request for production when you are party to litigation. Yet, despite this similarity, subpoena response often does not get the attention it deserves. From there, you will want to identify likely custodians of potentially relevant data, issue a litigation hold, collect and review your data, and ultimately produce that information to the issuing party, if required. The destruction of electronically stored information after a preservation obligation has been triggered can result in sanctions for spoliation, or the destruction of evidence.
Courts are divided on when a preservation obligation arises for third parties, some holding that the duty arises when a preservation letter or subpoena is received, with others saying it begins once litigation is reasonably anticipated—which can be long before a subpoena arrives. If you plan on challenging a third-party subpoena, you will still need to institute a defensible hold should your challenge be unsuccessful.
Your litigation hold process should begin by identifying all individuals or employees who control ESI that is potentially responsive to the subpoena request. A formal, written hold notice should be issued to all those custodians, instructing them to preserve potentially responsive documents, whether emails, office files, or even Slack messages.
Actively monitor your legal hold as it continues, to make sure that individuals are complying with their preservation responsibilities. As part of your legal hold, you will also want to pause any automated data disposition processes.
If, for example, your company email automatically deletes emails after six months, that process should be stopped for individuals under legal hold. From there, you can begin collecting and reviewing your data. Once collected, you can upload data to a document discovery platform, such as Logikcull, where it can be searched, tagged, redacted, and eventually produced to the issuing party.
This review is often the most resource-intensive part of the subpoena response process, but employing effective document review strategies can help significantly reduce the time and cost associated with subpoena response. Deduplication, Culling Intelligence, smart filters, and automatic privilege protection, for example, can often halve the number of documents requiring eyes-on review from the outset.
From there, smart search terms can help you narrow down your review even further. As with the discovery process, your search and review should be iterative—that is, you will continue to refine your process as you go through. For example, a search term that pulls up a significant number of nonresponsive documents can be refined to a more targeted search. Bulk keyword searching is one way to get a quick overview of your keyword strategy, and narrow it or expand it as necessary.
When this narrowing process is handled in-house, by corporate legal teams, the result can be a dramatic reduction of data requiring review by outside counsel—as much as 98 percent in many cases. For law firms performing this process for their clients, intelligent culling can result in significant cost and time savings to the client, as well as greater recovery of eDiscovery costs. Under the Federal Rules of Civil Procedure, if a document subpoena does not specify the form of production, a responding third party may produce the materials in the form in which they are ordinarily maintained or in any reasonably usable form.
Otherwise, the federal rules allow a party to specify the format in which the ESI should be produced. If that format is unreasonably burdensome or expensive, you may object to the request on such grounds. Negotiations with the issuing party can also result in a mutual agreement on the form of production, as with an ESI agreement in litigation. It is not uncommon for documents to be produced on physical media, such as DVDs, thumb drives, or even paper, and shipped to the issuing party.
However, such production methods can be quite risky and put the security of your data in jeopardy. Many seasoned litigators, for example, have a tale or two of a production that was lost in transit—though few will speak publicly of it. In addition to increased safety and data security, this method also allows you to set time-based access permissions, revoke access if necessary, and see a built-in audit trail of when your production was received.
An objection to a third-party subpoena effectively halts your subpoena response responsibilities. In many cases—as often as 60 percent of the time for some large organizations—the issuing party will not pursue a motion to compel, allowing the objections to go unchallenged and ending the subpoena response process.
However, the duty to preserve ESI remains until the court quashes the subpoena or the issuing party agrees not to pursue it. FRCP 45 does not set out the form objections must take. It is better to be overly broad in this effort so no one is overlooked. Once a business has identified individuals who have responsive documents, it should instruct them on what to search for i. If you are relying on individual employees to search for and collect documents, they must be monitored.
I cannot emphasize the importance of that directive enough. This conduct exposes you to significant penalties in connection with the litigation discovery process. You should ensure employees are acting appropriately and turning over all responsive documents, good or bad. If a large volume of email or electronic documents is involved, a business should engage an attorney or an outside vendor to assist with, and even conduct, the search and collection effort.
Outsourcing this process will often be more cost-effective for a business than committing valuable internal resources to the endeavor. Once you have assembled all the documents you gathered or instructed others to gather for you, you should review them carefully for three purposes:. Once the document have been collected and reviewed, you must determine how to respond to the subpoena.
Depending on the nature of the subpoena, the types of requests in the subpoena, and the types of documents you have, there are several options:. The easiest option is to comply with a subpoena and produce the requested documents. If there are no concerns regarding issues with the subpoena, legal exposure, the volume of documents, or any privilege or confidentiality issues, this option may be the most appropriate course of action. For physical documents, the recipient of a subpoena can produce photocopies.
The DVD you turn over to the party that served you with the subpoena should have a label affixed to it that identifies you, the date, and the range of Bates numbers on the documents contained on the DVD. When you produce documents, you have two options regarding how to organize them. You may choose which option to adopt. The former option — producing them as they are kept in the ordinary course of business — is likely the least burdensome method.
Alternatively, you can invite the party that served you with a subpoena to inspect the documents, instead of producing them. However, this approach is less common nowadays because the most common information being requested are emails. For example, if a Word document is maintained on your hard drive, you must produce that document as a Word file; you may not print it and produce it in hard copy.
Some parties will not care how you produce this information. However, you should be aware of this requirement. As a precaution, you should discuss this process with the party that served you with the subpoena, so there is no confusion.
You do not need to produce electronic documents that are not reasonably accessible because of undue burden or cost. For example, if documents on an old hard drive were boxed up, sent three time zones away, locked in a wooden box, and stored 10 floors beneath the ground in the middle of the desert, you will likely not be forced to produce those documents because the cost and effort required to re-obtain them would be burdensome.
When you produce the documents, they should be mailed or hand-delivered to arrive on the date of production stated in the subpoena. You could also email them, but sometimes the volume of documents is too large to make it through an email server. You are not required to provide the documents to every party participating in the litigation; rather, the party that served you with the subpoena has an obligation to provide copies of your production of documents to the other parties.
If you have no documents that are responsive to the subpoena, you should nevertheless respond in writing and state that there are no responsive documents. You should always put these types of communications in writing. If you want to object to any part of the subpoena, you may serve the other side with written objections, usually before the earlier of the date stated in the subpoena or 14 days after you receive the subpoena.
If you do not provide objections before this deadline, you will waive the right to assert any objections. Moreover, if you do not object and then fail to comply with the subpoena, you may be held in contempt of court see below. Depending on the forum, these objections may look like formal response to written discovery in litigation, or they may be stated in a letter to the party that served you with a subpoena. Every objection should state the legal grounds for the objection.
If you are objecting to any or all of the requests in the subpoena, you should state your objection to each request separately. Providing objections suspends your obligation to comply with the subpoena until or unless a court orders compliance, or you reach an agreement with the party that served you with the subpoena. If you do not wish to comply with the subpoena, you may file a motion to quash it before the date set forth on the subpoena.
Depending on which forum you are in, you will likely need to confer with the party that served you with the subpoena before filing a motion. There may be other procedural requirements, so — again — an attorney can help you navigate these requirements.
If you do not follow these rules, the court may deny your motion without consideration. A motion to quash must be based on valid grounds. A court will usually grant a motion — and quash a subpoena — if it i does not allow you a reasonable time to respond depending on the jurisdiction, a minimum of days ; ii requires that you produce documents at a location more than miles away; iii subjects you to undue burden i.
There may be other grounds to support a motion to quash, such as technical defects on the face of the subpoena, or that the subpoena was not served properly. However, the grounds above represent your best bet for quashing a subpoena. Usually, the filing of a motion to quash means you can refuse to comply with the subpoena until the court either denies the motion, or you reach an agreement with the party that served you with the subpoena. This varies by jurisdiction, so be sure to check the applicable rules of procedure to determine the effect of filing a motion to quash.
The mechanics of filing the motion may prove challenging depending on which court the lawsuit is pending. An attorney with experience in federal court can assist you with this process. If the court grants the motion, it may quash the subpoena entirely, modify it, or order that you comply with it on specified conditions. If the court denies the motion, you will usually have to comply with it as written.
Alternatively, you may file a motion for protective order — again, before the date set forth in the subpoena — that asks for the following relief: i forbidding the disclosure of some specific category of information; ii establishing parameters i. The guidelines above regarding conferring with the other side, engaging an attorney, and following the applicable rules of procedure particularly for filing all apply with respect to motions for protective order as well.
To persuade the court to grant a motion for protective order, you normally must demonstrate that the production of documents requested by the subpoena will cause a clearly-defined and serious injury. For example, the production of documents will cause someone embarrassment, will violate a privacy interest, or will violate a confidentiality agreement.
In addition, a motion for protective order could argue that the documents requested are not being sought for a legitimate purpose. Remember my cautionary instruction above about a party using a subpoena to gain information for a potential lawsuit against a non-party?
If you have a reasonable belief that is being done here, you should argue that in a motion for protective order. Depending on the forum you are in, the mere filing of a motion for protective order may not relieve you of your obligation to comply with the subpoena. Contact the party that served the subpoena to attempt to resolve the requests informally.
Instead of proceeding through the legal process outlined above, you could contact the party that served you with the subpoena and attempt to negotiate a narrower scope for the information requested, and a convenient time for producing that information.
In my experience, this approach is highly effective — again, if you are an innocent, neutral third party with no legal exposure — because the party that served you with the subpoena will usually welcome the opportunity to work with you. It will also help you minimize your costs for complying with the subpoena. One other alternative to the response methods outlined above is contacting the party who is adverse to the party that issued you the subpoena.
You should normally do this if the adverse party has a personal or privacy interest in the information requested by the subpoena. If the adverse party does, in fact, have such an interest, it may file a motion to quash the subpoena. For example, if you are an accounting firm, and the party served you with a subpoena requesting sensitive documents concerning a business transaction involving the adverse party, the adverse party may file a motion to quash the subpoena.
If the third-party subpoena for documents you received is valid, and there are no grounds for challenging, you must comply with it and respond with the production of documents requested. If you do not comply, you may be held in contempt of court or fined or imprisoned. Thus, you should make every effort to take appropriate steps to address, evaluate, and respond to a third-party subpoena. There are often various issues and considerations you should review — especially with an experienced attorney — when undertaking the process of gathering responsive documents and preparing a response.
Robert assists clients with business and commercial transactions, civil litigation, and complex dispute resolution.
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