In my practice, I have assisted clients ranging from publicly traded energy companies to individual executives in responding to third party subpoenas. Each subpoena is unique and fact dependent. However, below are three things to keep in mind when you or your company receive a third party subpoena.
1) HAVE COUNSEL ANALYZE THE SUBPOENA QUICKLY
Subpoenas can seek all sorts of information. For instance, a litigant may need something benign, like invoices to prove damages. Conversely, a subpoena can be a precursor to being made a party to ongoing litigation. Either way, it’s important to have counsel analyze the subpoena shortly after receiving it. If the information requested is confidential or has the potential to lead to further claims, counsel will need time to develop a strategy to provide all discoverable information while protecting the client’s interests. Additionally, various jurisdictions have different rules governing subpoena responses. Of note, the Federal Rules of Civil Procedure provide additional protections that can be raised only before or at the time a response is due under a subpoena. Accordingly, it’s important to make sure counsel and the client’s decision makers understand the client’s options before deadlines pass.
2) IDENTIFY THE PERSONS WITH KNOWLEDGE OF RELEVANT FACTS AND DOCUMENTS
In responding to a subpoena, there is a balance between providing discoverable documents and the burden imposed on a non-party to the litigation. The scope of document collection can vary on the nature of the underlying litigation. Complex commercial litigation may require an extensive email search within an organization. Conversely, a subpoena seeking routine invoices between a client and a vendor may require a less extensive search. Either way, the party in receipt of a subpoena will often save time and money by identifying which person(s) in an organization have a strong knowledge base of the topics that are the subject of the subpoena. Often times, company executives or in-house counsel will have very limited knowledge of the information subpoenaed. An early conversation with others in the organization who understand the particular department or business practice implicated by the subpoena can prevent duplicative or unnecessary searches for documents. In my experience, the earlier contact is made with a person who understands the topic, the more efficient the client and counsel can be in responding to the subpoena.
3) DETERMINE WHETHER THE UNDERLYING LITIGATION HAS A PROTECTIVE ORDER IN PLACE
Subpoenas can often seek a company’s internal communications. These can range from day-to-day operational information to strategy discussions between members of the C-suite. If there is a protective order in place in the underlying litigation, such orders may have provisions allowing third parties to claim the additional protections by designating information as confidential or attorney’s eyes only. Most outside counsel, including McGinnis Lochridge, have resources to quickly find documents filed in the underlying litigation, including protective orders. It’s important to use these resources to make sure you or your company are not producing documents that could have additional protections under a protective order.
