When Your Small Business Receives a Subpoena Duces Tecum

A subpoena duces tecum is a formal legal document instructing the recipient to produce certain identified documents, computer files, or other physical items.  Typically, a party to criminal or civil litigation serves this type of subpoena on a non-party in order to identify information helpful to the litigant’s case. There are various other types of subpoenas, such as witness subpoenas, that are not discussed here.  

Running a business is difficult and time consuming even in the best of times, so receiving a subpoena can understandably cause stress and confusion to a business’s officers and employees. This post discusses a few of the basic issues associated with a subpoena duces tecum. This post is not exhaustive, however, so always contact your attorney immediately upon receiving a subpoena. 

Initial Considerations

First, review the subpoena carefully to determine what is requested, who requested it, and the deadline to respond. Regardless of how you plan to respond, immediately issue a litigation hold to relevant employees to ensure that the requested documents or materials are not destroyed. Though it sounds like common sense, do not simply disregard the subpoena or put it at the bottom of your to-do list. Ignoring a subpoena can result in a contempt of court and monetary sanctions.

Written Objections

Second, consider how to respond. Just as a business should not ignore a subpoena, nor should it automatically comply without question. Under certain circumstances a business should object to a subpoena. There are both procedural and substantive potential objections. Some procedural bases for objections include improper service, service after the discovery deadline, and unreasonable response time. Possible substantive grounds for objections may include:

Relevancy: Information requested should be relevant to the subject matter of the underlying litigation and reasonably calculated to lead to the discovery of admissible evidence. 

Undue burden and expense: Compliance with a subpoena would cause an undue burden or expense to the producing party.  

Lack of possession, custody, or control: The responding party does not possess, actually or constructively, the requesting documents, nor are the documents within its custody or control.

Trade secrets and confidential business information: If a subpoena seeks documents that contain sensitive business information the business can object. If the requesting party demonstrates a substantial need, however, then production of such information may ultimately be required under the limits of a protective order.

Confidential personnel information: If an individual’s personal confidential information is contained in a requested document, the business should immediately notify such person of the request. The business may be able to object, or, the person whose information is to be produced may have to object. Notably, certain statutory requirements apply when an individual’s medical records are requested.

Privileges: In addition to the well-known attorney-client privilege, there are other privileges that may render a subpoena objectionable. For example, health care records made in connection with quality or peer review matters carry a special privilege.

Written objections must be served on the requesting party or attorney within a certain period of time after service. Failure to object within such timeframe may result in waiver of any objections. After serving timely written objections, the requesting party may move the court for an order to compel production. A court will not issue an order to compel unless the moving party has first made or attempted to make a good faith effort to resolve the matter with the other party. After a good faith effort at resolution by the parties, the business also has the option to move the court for a protective order to limit production. It should be noted that when a business makes written objections to a subpoena, it can still comply to the requests for which there are no objections, if there are any.

Motion to Quash or Modify

A business may also decide to make a motion to quash or modify the subpoena based on the same grounds listed above. A motion to quash or modify must be timely and it also requires that the parties first confer or attempt to confer in good faith to resolve their differences. Upon a motion to quash, the court may grant, deny, or modify a subpoena.

Finally, there are many considerations and pitfalls involved in responding to a subpoena duces tecum. Small businesses served with a subpoena should conduct a step-by-step analysis of the subpoena from both a procedural and a substantive perspective. An attorney could be invaluable to this process and should be consulted immediately to help protect your business.

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