You just opened your mail – or worse yet, were confronted by a representative of a court (sometimes in uniform) – and learned that a subpoena has been issued to you in connection with an on-going legal action. Admittedly, this can be an unsettling experience. A clear understanding of your rights and obligations will help you through the process, should you ever find yourself in this situation.

What does it mean if I’m served?

A subpoena is used by disputing parties to get information and documents from third-parties. Being served with a subpoena does not necessarily mean that you (or your company) have done something wrong or that you will be sued. Often times, it simply means that one of the parties to the dispute believes that you may have relevant information or documents. However, be aware that a subpoena can sometimes be a sign of bigger problems.

In general, there are two types of subpoenas: (1) one that orders you to appear to testify, under oath, at a deposition or hearing (a subpoena ad testificandum); and (2) one that orders you to produce documents (a subpoena duces tecum). In some instances, a subpoena may request that you do both, produce documents and testify.

What do I do first?

It is important to understand that you must comply with a properly issued and served subpoena. Failure to do so could subject you (or your company) to negative consequences by the court. The worst thing that you can do is ignore it. Once served with a subpoena, you are under a legal obligation to preserve the requested information and documents. Do not destroy anything, as this could similarly subject you to punishment and potential liability.

What details do I need to know?

Carefully review the subpoena and the attached documents… thoroughly. Although legal documents are sometimes difficult to understand, there is a lot of valuable information within the subpoena, including:

• Details of the underlying dispute –the names of the parties, the court and the case number;
• The identity of the party/lawyer who issued the subpoena;
• What you are being requested to do (produce documents, provide testimony or both); and
• The relevant date, time and location for your compliance.

These days, most court records are publically available online. After identifying the court and case number referenced on the subpoena, you can visit the website of that court to view the filings in the case and get a better understanding of the issues that are in dispute. This information will give you the ability to understand why you have been subpoenaed and better assess the potential risks to you when providing the requested information and/or documents.

If you have questions about your obligations, you can contact the party/attorney who issued it; however, it is important to remember that they may not be on your side. Understand that anything you say or produce can be used against you. Accordingly, if there is any doubt, it is in your best interest to contact an independent attorney to answer your questions and to communicate with the other side.

What are my rights?

Although a subpoena imposes a legal obligation on you, that does not mean that you are without rights. There are a number of ways in which a subpoena can be challenged, including the following:

• Time to Comply: A subpoena must give you a reasonable time to comply with the obligations. Generally, a reasonable time is at least 21 days. If you are unable to comply on or before the identified date, due to a scheduling conflict or otherwise, you may contact the person that issued the subpoena to request additional time. Extensions of time are common and should always be confirmed in writing – at least in an email;
• Cannot Impose a Hardship: A subpoena cannot impose an “undue” burden or hardship on the recipient. The subpoena should identify the specific information and documents that are being requested. It is common for parties to ask for more information and/or documents than they actually need. If the request is very broad, or compliance would require a significant amount of time and/or expense, you can ask that the person who issued it to narrow the scope of the request(s). Again, any such agreements should always be confirmed in writing;
• Cannot Impose Additional Obligations: A subpoena does not impose an obligation on you to create new documents or learn additional information. A subpoena may only request that you provide information that is within your knowledge – if you do not know the information that you are being asked for, “I don’t know” is a perfectly acceptable response. Additionally, a subpoena may only request that you produce documents that are within your possession, custody and/or control – if you do not have (or otherwise have access to) the documents that you are being asked for, then you do not have any documents to produce.

Before responding to a subpoena, you should fully assess your potential liability. It may be that one of the parties to the dispute is looking for other people to point a finger at and you are on their list. Moreover, complying with the subpoena might open you or your company up to liability unrelated to the underlying dispute. For example, if the subpoena requests documents or information that, by law or by contract, you are not permitted to release without the consent of another person or entity, you should take care to get that permission before disclosing the information or documents. If you find yourself in either scenario, you should seek legal advice to understand and protect your interests.

In some instances, strict compliance with a subpoena may result in the disclosure of information that is privileged, confidential and/or competitively sensitive. Examples of such information may include personal/private information (social security numbers, account numbers, home addresses), customer/supplier lists, detailed financials and pricing information. If the subpoena requests this type of information, and the party that issued the subpoena is unwilling to withdraw the request, you should retain counsel to assist you. In most cases, your attorney can obtain a protective order from the court that, at a minimum, restricts the use and disclosure of this type of information.

While it can be disconcerting at first, a subpoena subjects you to a legal obligation to respond, and failure to do so could result in meaningful consequences. Don’t ignore it. In most instances, the best thing to do is to contact a lawyer to explain your rights and understand the potential risks, even if you ultimately choose not to challenge it. Having an experienced attorney on your side can reduce worries and mitigate additional legal issues.