It is the bane of any legal department’s existence – the third-party subpoena.  Frustration is often the first emotion for the recipient because responding to such a subpoena can be time consuming, expensive, and is an unplanned event outside the budget.  Third-party subpoenas can range in invasiveness – some are relatively easy to respond to, while others seek vast swaths of information, including potentially closely-guarded trade secrets.  When responding to subpoenas, however, there is no need to go it alone.  CMBG3 Law and its partners have years of experience in supporting clients in responding to third-party subpoenas, and the firm is well positioned to help navigate these types of unwelcome intrusions.

In civil litigation, one of the primary mechanisms for obtaining information from third parties is through document subpoenas.  These subpoenas, specifically in federal court, are governed by Rule 45 of the Federal Rules of Civil Procedure.  Understanding the procedural intricacies and obligations associated with subpoenas is crucial for both litigants and those third parties served with such requests.  While this article will focus on the Federal Rules, every state has its own version of Rule 45, and knowing and understanding the specific rules at issue, including whether the subpoena is even jurisdictionally valid, is critical.  And while no party – entity or individual – looks forward to receiving a subpoena, the steps below can assist in preparing the response.

Calendar the Deadlines and Negotiate

Upon receipt of a subpoena, calendaring is paramount.  Beyond just noting the return date specified on the subpoena, it is imperative to note any deadlines for objections.  These deadlines, often dictated by local rules, can vary but typically require objections to be raised either by the return date or within 14 days of service.  Service of a Rule 45 letter upon the subpoenaing party on or before the objection date is necessary to preserve rights.  Moreover, the Rules of Civil Procedure are designed to protect the third-party recipient, and the party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.

However, fostering open communication with the issuing party can sometimes lead to mutually agreeable arrangements regarding document production.  Nothing in the paragraph above prohibits or prevents the recipient of a third-party subpoena from negotiating with the issuing party the timing of the response, the timing of the service of objections, or the categories of documents that must be produced pursuant to the subpoena.

Identify and Preserve Documents

The moment a subpoena is served, third parties are bound to initiate the process of identifying and preserving potentially responsive documents.  This entails more than just a cursory review; it necessitates a comprehensive strategy which may encompass the issuance of litigation holds, ensuring thorough documentation of all potentially responsive materials, and implementing measures to safeguard the integrity of these materials throughout the legal proceedings.  Again, however, the Rules of Civil Procedure can protect the recipient of the subpoena, as the Rules explicitly state that the Court must protect the third-party from “significant expense resulting from compliance.”

Evaluate Options

In tandem with document preservation efforts, third parties should carefully evaluate their options when responding to the subpoena.  Factors such as the nature and scope of the requested documents, the associated costs of complying, and potential legal grounds for contesting the subpoena all weigh into this decision-making process.  Striking a balance between compliance and strategic response is essential when navigating the complexities of responding to a subpoena.

Take Action: Compliance, Objection, or Modification

When it comes to responding to subpoenas, third parties are presented with several courses of action, each with its own implications:

Complying with Subpoenas: Third parties are obligated to produce responsive documents within their possession, custody, or control, barring any privileges.  If documents are withheld on privilege grounds, the identification and the basis for their withholding must be accompanied by a privilege log to ensure transparency.

Objecting to Subpoenas: Should a third party deem certain aspects of the subpoena objectionable, the party reserves the right to raise written objections.  Grounds for objections may include undue burden, relevance, ambiguity, or the protection of privileged or confidential information.  Courts typically permit a much narrower range of discovery requests directed to third parties than actual parties, so the breadth and scope of the subpoena must generally be relatively well-tailored to the information requested.  Broad fishing expeditions are less likely to be permitted by most Courts.

Moving to Quash or Modify Subpoenas: In cases where the subpoena appears overly burdensome or infringes upon legitimate concerns, third parties can seek recourse through motions to quash or modify the subpoena.  Timeliness is important in such actions, with courts typically requiring motions to be filed prior to the return date specified on the subpoena.  With return dates sometimes as short as 10 days, quick initial action by counsel who know the applicable law is usually necessary.

By comprehensively addressing these steps, third parties can navigate the complex landscape of document subpoenas in civil litigation with greater clarity and confidence.  Balancing compliance with strategic considerations ensures a judicious approach to meeting legal obligations while safeguarding the interests of all involved parties.