You’ve gotten a subpoena, now what?
Subpoenas and Non-Party Discovery
A subpoena is the legal mechanism that commands (1) the production of documents, electronically stored information, or other information, (2) the inspection of premises, (3) testimony at a deposition, hearing, or trial, OR a combination of all three. The applicability and legal force of a subpoena is not limited to only those parties directly involved in the litigation. Non-party recipients are similarly bound to comply with the subpoena’s demands.
Generally, the producing party must bear the expense of producing the individual for deposition or the documents for review. The same is true for non-parties, despite their having no stake in the outcome of the litigation.
One common subpoena type, a subpoena ad testificandum or testamentary subpoena, compels a witness to appear and give testimony at a deposition, hearing, or trial. Of course, there are costs and considerations associated with the testamentary subpoena, but the costs and burden associated with a typical testamentary obligation often pale in comparison to those of a subpoena duces tecum, or a production subpoena, which requires production of documents, electronically stored information (“ESI”), and other things.
In federal court, a non-party may be served with either a testamentary or a production subpoena. In Georgia, as an alternative to a production subpoena, a non–party may be served with a request for production of documents (“RFP”). The RFP functions as a subpoena duces tecum, as it relates to the production of “books, papers and other things.”
Cost of Non-compliance
Consequences for failing to obey a subpoena or a subpoena-related order vary depending on the issuing state or federal court. However, all courts have the power to enforce compliance with a subpoena, either by imposing fines, awarding damages (including attorneys’ fees), holding the non-complying party in contempt of court, or issuing an arrest warrant for the non-complying party. This is all just to say that any penalty for failure to comply with a subpoena will certainly increase the burden and expense without mitigating a company’s obligation to perform. There are, however, a variety of response options that may reduce the cost of compliance.
What should companies do?
After receiving a non-party subpoena, a company should immediately:
• confirm that the correct entity was served and that service was proper;
• take reasonable steps to preserve relevant documents and ESI by suspending the routine destruction of documents;
• implement the company’s document retention policy by issuing a litigation hold to all relevant employees (even if the company intends to challenge the subpoena);
• notify company officers, select employees, named deponents, document custodians, and the IT department;
• review the subpoena’s contents and scope;
• calendar the subpoena’s return date;
• communicate with legal counsel;
• implement procedures to protect the company’s privileges; and
• evaluate the company’s insurance policies’ notice requirements, as a subpoena may be a triggering event.
Respond and/or Object
If it appears that the process will require more than basic IT services, including the services of any IT vendors or ESI specialists, or the Company’s compliance costs will exceed a certain amount, the Company should take the necessary steps to preserve its right to insist that the requesting party (or other parties in the litigation) share in those expenses.
The company may respond to the subpoena by: contacting the issuing party or its counsel to informally resolve any issues with the subpoena; complying with the subpoena; objecting to the subpoena; moving to quash or modify the subpoena; or moving for a protective order.
Expressly requesting modification at the outset may result in an agreement to more clearly define, or even significantly limit, the scope of the discovery request. No matter the ultimate decision, a company should decide on a preliminary response as quickly as possible, because these non-party discovery matters can grow exponentially if left unchecked.
In federal courts, a production subpoena must specify the time, not less than 20 days after service, and the place and manner of production. The subpoenaed party may file with the court, and serve on the attorney listed in the subpoena, a written objection within 10 days or before the compliance deadline (if the deadline is less than 10 days).
In Georgia, a non-party’s written objection to producing the requested documents should be filed with the court and served on the attorney listed in the RFP within 10 days after the RFP’s service. A motion to quash or modify an RFP must be made promptly and always before the time specified in the RFP for compliance. Protective orders may be appropriate in circumstances where a subpoena is served in bad faith or merely reflects an intention to harass the subpoenaed party.
Responding to a non-party subpoena is a legal process, and the Company should be wary of engaging in the process without legal representation. Specifically, the company should engage outside counsel to respond to the subpoena if:
• the demand calls for the production of a large quantity of documents, including ESI;
• the subpoena calls for testimony from a board member or a senior executive;
• the company has a sophisticated IT system and must review and produce voluminous ESI;
• the company receives many subpoenas every year and lacks the staff or expertise to respond to every subpoena;
• the company intends to challenge the subpoena by objecting to it or making a motion; or
• in-house counsel is not licensed to practice in the court that issued the subpoena.
While the parties involved in the underlying litigation may have incentive to avoid unnecessary costs or disruptions, that holds even more true for a non-party Company with no dog in the fight. Subpoenaed non-party companies can ease the costs of non-party discovery by being proactive and knowing when to seek legal counsel.
Stanton Law Can Help
Come to Stanton Law for help handling a subpoena and all its related issues. Our experienced Atlanta attorneys are available at 404-531-2341 and online to assist you in navigating all your business law needs