Practical Insights for Business Owners
Client Q & A: I’ve Been Served With a Subpoena. Now What?
I’ve been served with a subpoena. Now what?
When parties to civil a lawsuit need evidence from non-parties to support their claims or defenses, they may issue subpoenas to obtain such evidence. These subpoenas are often personally served by process servers in the same way that complaints initiating lawsuits get served.
Generally speaking, there are two types of subpoenas: (1) a subpoena seeking documents (typically referred to as a "subpoena duces tecum" from the Latin); and (2) a subpoena seeking testimony (typically referred to as a "subpoena ad testificandum," again from the Latin). These may be combined, such that a single subpoena can seek both documents and oral testimony. In that circumstance, the issuing party typically wants the documents at the same time as, if not in advance of, the oral testimony.
If you are served with a subpoena, it is important to keep track of timing. The date on which you are served starts the clock with respect to your time to respond or object to the subpoena.
No one wants to expend the time and effort needed to respond to a subpoena, but they have the force of a court order, so you cannot ignore one.
When you receive a subpoena seeking oral testimony, you should first check to see if the subpoena commands you to appear in court for a trial or other evidentiary hearing, or for deposition testimony before trial (sometimes referred to as an "examination before trial" or "EBT" in New York State courts). If the latter, you will probably be summoned to appear in a lawyer's office, where you must respond to questions from the parties' attorneys before a court stenographer. Keep in mind that you may not have to testify on the date and time specified in the subpoena; if you have other commitments, you should reach out to the attorney issuing the subpoena to see if the date is flexible. You will also be entitled to a nominal witness fee.
If the subpoena seeks documents, it must specify what documents are sought with reasonable particularity. You have the right to raise objections to the subpoena, such as, for example, if the subpoena is overbroad, unduly burdensome, seeks privileged materials, or is otherwise improper. Objections must be served within the time frame specified on the subpoena, typically in 20 to 30 days. You should keep track of the expenses you incur in responding to subpoenas. It is often the case—particularly in New York State courts—that the party issuing the subpoena must reimburse or defray such costs, which can include copying and document collection fees, the value of the time spent for personnel to collect documents, and even possibly attorneys' fees if you hire counsel to represent you. If the subpoena is delivered to a business or organization with many people or branches, it is important that all relevant personnel be told about the subpoena so that documents that are potentially responsive to it can be preserved. It is best to do this in writing, in the form of a "litigation hold" memorandum. Any automatic deletion or document shredding/destruction policies must be suspended for the documents called for in the subpoena. Last, if the subpoena seeks business records, you may be asked to provide an affidavit authenticating them as records generated in the ordinary course of the business.
Quashing a Subpoena
If you think that the subpoena was sent to harass you or for some other improper purpose, you have the right to ask the court to "quash" the subpoena. This would require you to file a motion asking the court to grant you that relief. In the first instance, you should raise your concerns with the issuing party (while making sure to preserve your right to raise written objections within the time frame for a response) in an attempt to work it out before asking for court intervention. Quite often, you can agree to narrow the scope of the subpoena as a reasonable compromise.
If the subpoena seeks sensitive, confidential, or proprietary information, it is often possible to ensure such information is produced subject to a court-approved "protective order," which requires the parties to keep your information confidential and not file it in a publicly-accessible way.
What to Do If You Are Served With a Subpoena
It can be stressful when a process server shows up at your home or business to serve you with papers. The good news is that if those papers are a subpoena, it means that you are not a party to a lawsuit and that you are just being asked by one of the parties to provide evidence. Since there are many pitfalls involved in responding to subpoenas—especially because sometimes parties use subpoenas to see if they may have a claim against the non-party—you should consult with counsel as soon as you are served. We are very experienced in helping individuals and businesses that have been served with subpoenas respond in a way that efficiently and effectively protects their right not to be subject to unfairly burdensome demands yet makes sure that they do not get themselves in trouble by not properly responding.