My Business Was Served with a Subpoena. What Should I Do?

Do not panic. Be prepared in advance to ensure you move through this process with ease. Receiving a subpoena does not necessarily mean you or your business are in trouble. Sometimes you may have information that is relevant to another lawsuit. There are times, however, that you or your business may be the subject of an investigation, and responding without legal advice can put you or your business in jeopardy. So, take this seriously and follow the steps below to make sure you are covered.

What is a Subpoena?

A subpoena requires either producing documents or for an individual to appear in a legal proceeding.

When is a Subpoena Served?

While subpoenas are typically served without warning, having a process in place for receipt and review can minimize any disruptions to you or your business. Pay close attention because subpoenas will detail what needs to be produced and the deadline.

Clarity about who in your organization is authorized to accept service of a subpoena, what elements to review, and some of the questions to ask when you contact an attorney will help in meeting the deadline. So, designate a person to receive all subpoenas. Anyone who encounters someone attempting to serve a subpoena should direct them to the designee.

Regardless of who accepts the subpoena, they should not engage in conversation with the server—the best course is to take the subpoena politely and end the encounter.

Note, however, that not all subpoenas are delivered by hand. They can also be sent via email, certified mail, or registered mail via the United States Postal Service.

Reviewing the Subpoena

Before you get on the phone with your attorney, it is helpful for you to have a basic understanding of the subpoena.

Look at the name of the lawsuit or proceeding to which the subpoena is related. It may give you an understanding of why you received the subpoena in the first place.

Next, look at who sought the subpoena. Is it a participant in civil litigation or perhaps a government agency?

Look carefully at what the subpoena requests, which can be one of three things:

• – Testimony in a deposition or at a hearing or trial
• – Production of documents
• – Permission to inspect the premises or records

Subpoenas typically have appendices that detail the subjects for testimony, or the types of documents requested. Review these carefully.

Testimony subpoenas can apply to individual company employees or the business itself. For subpoenas seeking business testimony, you must provide someone knowledgeable on the subjects in the subpoena. But do not produce someone without consulting your attorney.

Contacting Your Attorney

Once you have a general understanding of the subpoena, contact your attorney and send them a copy. They can help you understand your options, including whether you should try to nullify (“quash”) the subpoena.

Among the issues you should discuss with your attorney are:

• – Was the subpoena properly served? If not, your attorney will advise you on your option to quash the subpoena or have it served according to the rules.
• – What does it mean? Subpoenas frequently contain definitions that use words in ways you might not. If you respond according to your understanding rather than the one in the subpoena, you can face compliance issues down the road.
• – Does it ask for too much? Even though discovery allows a lot of leeways to request information, many subpoenas are overly broad. You may wish to have your attorney discuss narrowing the subpoena, and you should have the object to overly broad requests in the response.
• – Does it ask for privileged information? You have a constitutional right against self-incrimination, which means you cannot be forced to answer questions that may implicate you in a crime. Also, you may be asked to produce confidential information that you have professional obligations to protect.
• – Do you have to respond at the time stated? The subpoena will set a date for a response. You may want extra time to respond or decide on moving to quash. Frequently, parties will agree on extensions to the response dates.

These are just a few of the things you should discuss with your attorney after receiving a subpoena. You should never attempt to respond on your own. And you should especially never try to talk to the other side’s attorney without your attorney present.

Responding to the Subpoena

Do not be tempted to ignore the subpoena—you should always respond in some fashion. If you fail to respond, you waive your right to object. However, you do not have to provide everything that is requested immediately. You have the right to seek clarification and even a narrowing of the subpoena’s scope. And, in many cases, you have the right to seek to quash the subpoena. But there are procedures to follow and failure to comply can result in jail time, fines, or both. Your attorney can guide you on your options and the best course of action.

Summary

Being served with a subpoena disrupts your business, but you can minimize the effects if you have a plan for when it happens. Identify the person or office authorized to accept and review subpoenas, have a checklist for elements of the subpoena to review, and contact your attorney as soon as possible for answers to your questions and advice on moving forward, including ensuring that you respond by the deadline. The attorney should communicate on your behalf—do not respond to the subpoena or contact the court or the attorney who issued the subpoena on your own.

Eleina K. Thomas, Esq. is a Senior Associate at Gertsburg Licata. Her practice is focused on criminal and complex civil litigation at the Federal, State, and local level.

This article is for informational purposes only. It is merely intended to provide a very general overview of a certain area of the law. Nothing in this article is intended to create an attorney-client relationship or provide legal advice. You should not rely on anything in this article without first consulting with an attorney licensed to practice in your jurisdiction.

Gertsburg Licata is a full-service, strategic growth advisory firm focusing on business transactions and litigation, M&A, and executive talent solutions for start-up and middle-market enterprises. It is also the home of CoverMySix®, a unique, anti-litigation audit developed specifically for growing and middle-market companies.