What do I do if my business is served with a subpoena for information about one or more of my customers?
Hire a lawyer! Of course, this is exactly the answer you would expect from a lawyer. But it is indeed the very best thing to do in this situation. However, it is not necessarily required, depending upon the nature of the subpoena and the course of action you choose to follow.
If you want to attempt compliance without a lawyer, the first thing to understand is that a subpoena places some burdens on your business and compliance is not optional. Along with this duty, there are some responsibilities and obligations of the person/lawyer serving the subpoena. This article will discuss some of these issues, but should not be considered complete or appropriate for your situation. In other words, this is for informational purposes only and is not legal advice upon which you should rely.
First, you should determine two things: 1) what is the business being asked to do; and 2) what is the deadline for compliance. A subpoena typically asks for someone to appear for a deposition or produce documents, with the latter being most likely when your business is not otherwise involved in the court case. In the more unusual situation where the subpoena asks for your appearance at a deposition (at which someone from your business would testify under oath), you should even more seriously consider getting help from an attorney. Regardless, this article will be limited to the second type of subpoena (i.e. one for documents).
Within the subpoena, you will find explicit notice of the deadline for compliance. Typically, this deadline is fourteen (14) days from service. In that situation, the deadline will be two weeks from the day your business actually received the subpoena. You may be able to obtain an extension (see below), but absent that, you MUST provide some response by the deadline, so pay careful attention to this date.
Next, the items sought by the subpoena will be explicitly stated within the subpoena. A typical subpoena might ask for all documents in your possession concerning an individual or company with which you do business. Unless there is some complication, like those mentioned below, a response to the subpoena merely involves providing copies of the requested documents to the person requesting them. These days, you may wish to produce these documents in digital form (e.g. on a USB drive). If this is appropriate, your best course of action would be to simply coordinate the process with the person making the request. You may also negotiate a new deadline. However, there are a number of problems that you may need to solve before you can do that.
For a subpoena to be proper, it should include an unambiguous description of a limited set of documents being requested. If the subpoena’s request is ambiguous/unclear you should first seek clarification from the person sending the subpoena (the subpoena will list that person). Failing that, you will have to file something with the court by the response deadline (see below). Similarly, if the subpoena appears to request of a large universe of documents, you should seek limitations from the sender. And, again, if you are unable to reach an acceptable resolution with the sender, you will need to seek help from the court.
The person sending the subpoena also has the obligation to ensure that compliance with the request is not too burdensome on the recipient. “Too burdensome”, of course, is a bit vague and subject to interpretation. However, if you feel that compliance with the request is more than a small inconvenience (maybe an hour or two of work), or will be costly, you can seek an agreement from person sending the subpoena to limit the request and/or reimburse your business for the cost of compliance. If you cannot reach an acceptable solution, you should seek court assistance by the response deadline.
One of the most difficult considerations when your business receives a subpoena is determining whether you have some duty to protect the documents being requested, typically because they contain information about others that would be considered private or confidential. Obviously, if your business routinely handles sensitive information, you should understand your obligations to protect that information. Everyone has probably heard that their personal healthcare information is covered by HIPAA (The Health Insurance Portability and Accountability Act of 1996), but there are many other legal requirements for protection of different types of information. If your business handles such information, you should understand your obligations and what you need to do in the event you receive a subpoena that requires disclosure of protected materials.
Given the wide variety of situations where this issue may arise, it is impossible to provide much helpful information in this article. It suffices to say that, if you think you are being requested to provide information that someone may consider private, you should seek legal advice on handling compliance. Similarly, if you are reading this article and know that you routinely handle this type of material, you should seek legal advice now on how you would handle a future subpoena. If you are simply unable to obtain legal advice/help and you believe that responding to the subpoena will cause you to release private information, you should seek limitations from the sender that would alleviate your concerns. Otherwise, you will need to alert the court (see below).
Finally (at least for this article), if you perform all of the mitigation steps above and you still feel that the subpoena is still ambiguous, limitless, burdensome, and/or invasive, you will need to involve the court. A threshold issue to consider is whether you are even permitted by law to represent your business in court. Typically, businesses must be represented by a lawyer in court, since someone other than a lawyer appearing in court on behalf of the business would be practicing law without a license. There are some limited exceptions to this rule, but you should carefully consider whether you qualify. Nonetheless, if your only options are to appear in court “illegally” on behalf of your company or fail compliance with the subpoena entirely (and risk your business being held in contempt of court) you may determine that the former is the “lesser of two evils”.
Ultimately, if you determine that you need to involve the court without being represented by an attorney, you should file an Objection with the court prior to the deadline for compliance. This Objection is a document that should contain the court “caption” for the case in which the subpoena was issued and must be filed with the court (or administrative body – some administrative agencies have subpoena processes, as well) identified in the subpoena. The “caption” is merely the top portion of the first page of the subpoena that identifies the court issuing the subpoena, the parties to that case (e.g. “John Doe, Plaintiff v. Jane Doe, Defendant”), and the case number. You should send a copy of the Objection to the sender of the subpoena, as well as any other “interested parties” (see below).
In the Objection, you should describe the basis for your challenge to the subpoena, and the relief you want the court to provide, which could be to “quash” (invalidate) the subpoena entirely and/or limit it in some manner, as well as possibly order the requesting party to pay the reasonable cost of compliance (you should explicitly state this cost or how it should be calculated). Additionally, if your Objection is based on someone else’s protection (typically a customer/customers), those people would be interested parties to which you should send a copy of the subpoena and Objection. An interested party may then wish to file their own Objection with the court. Of course, you should sign the Objection and include your contact information. Once you file the Objection, you will simply wait for the court to do something (which will almost always be to schedule hearing).
In summary, a subpoena to your business is a serious matter that raises myriad legal concerns. Your best course of action is to seek advice from an attorney (**NOTE: maybe include a link to our consultation product). Whatever you do, you must either comply with the subpoena (either as written or in accordance with any agreement you make with the sender regarding limitations/extensions) or file an Objection.
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