Responding to Subpoenas
Springfield Metropolitan Bar Association
Doug Healy
March 25, 2013
Responding to Subpoenas
• Is it enforceable?
• Which Court/Administrative body issued the subpoena?
• Jurisdiction?
• Properly served?
• Action if enforceability is in question?
Responding to Subpoenas
• If enforceable, what next?
• Time to respond
• Scope of subpoena proper?
• Motion to quash or other objection to subpoena?
• Contact issuing and opposing counsel?
Responding to Subpoenas
• Look at underlying action
• Does underlying action involve client, employees, or BOD?
• Could underlying action involve client, employees, or BOD?
• What circumstances require notifying BOD?
• How much investigation into underlying cause of action
should you do?
Responding to Subpoenas
• FRCP 45 - - written objections to a subpoena
• Burden is on requesting party to ensure subpoena is
not overly burdensome
• If request is for documents, consider filing written
objections to requesting part if request is overly
broad, burdensome or vague or requests privileged
material. [FRCP 45(c)(2)(B)]
Responding to Subpoenas
• FRCP 45 - - quashing or modifying a subpoena
(3) Quashing or Modifying a Subpoena
(A) When Required. On timely motion, the issuing court must
quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(iii) requires disclosure of privileged or other
protected matter, if no exception or waiver applies; or
(iv) subjects a person to undue burden.
Responding to Subpoenas
Mo.Rul.Civ.Pro. 57.09(c) is the Missouri equivalent to
FRCP 45 for third-party subpoenas
If objecting or quashing the subpoena, look at 56.01(c) if
you wish to obtain a protective order to limit disclosure
If not filing for a protective order, any objection to the
subpoena is served to all parties of record; up to issuing
party to file a motion to compel and bring the matter
before the court
Responding to Subpoenas
Duty In Responding to Subpoena
Once you have made a determination that the
subpoena is enforceable and of proper scope,
what all should you do to comply?
Responding to Subpoenas
Duty In Responding to Subpoena
• (d) DUTIES
IN
RESPONDING
TO A SUBPOENA.
• (1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored information:
• (A) Documents. A person responding to a subpoena to produce documents must
produce them as they are kept in the ordinary course of business or must
organize and label them to correspond to the categories in the demand.
• (B) Form for Producing Electronically Stored Information Not Specified. If a
subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in which
it is ordinarily maintained or in a reasonably usable form or forms.
• (C) Electronically Stored Information Produced in Only One Form. The person
responding need not produce the same electronically stored information in
more than one form.
Responding to Subpoenas
But if Administrative Agency/Commission,
remember to look at the appropriate CFR or CSR or
applicable statute
Most Administrative bodies have their
subpoena/investigatory power procedures in their
rules, including the proper procedure to object to
a subpoena as well as how to properly respond.
Responding to Subpoenas
Duty In Responding to Subpoena
Privilege
Work Product
Trade Secrets
Attorney Client
Third Party Privacy Rights
HIPAA
Responding to Subpoenas
• Regardless of whether you object or attempt to quash
the subpoena, once you receive a subpoena….
• Litigation Hold to all employees
• All or just those who would have information
• Search affiliated companies
• Include IT personnel in search
• Monitor search for documents
Responding to Subpoenas
• Engage outside counsel?
• When or Why?
• Conflicts
• Document Search Assistance
• Prior dealings with requesting party
Responding to Subpoenas
Failure to Respond to a Subpoena
Contempt
Always respond, whether it is by motion to quash,
modify, objection, or protective order; or by
compliance with subpoena