So, your company has been served with a subpoena to produce evidence. Is your first instinct to panic? It doesn’t have to be. With the right tools in place, you can craft a subpoena response like the cool, collected professional you are. This blog will give you some key tips on how to best respond to a third party subpoena request.
What is a Third Party Subpoena Request?
Plain and simple, a third party subpoena request for documents , or more formally a “subpoena duces tecum” is a court order requiring a third party to produce documents. Complying with this type of subpoena requires that an organization produce the requested documents, it does not require a third party to give testimony.
Many types of businesses hold information that could be relevant or even critical to civil litigation between external parties. Subpoenas are often directed at individuals or organizations who aren’t otherwise involved in the case. For example, a financial institution may receive a subpoena request from a litigant involved in a divorce proceeding. In addition, without prior knowledge on how to handle these requests, they can be a huge headache for certain organizations. But with the proper tools and training, you can respond to third party subpoena requests easily and efficiently.
How To Successfully Respond to a Third Party Subpoena Request
Start by carefully reviewing the entirety of the request. If the inquiry doesn’t specify the suspected violation, consider what information is being sought and reflect on what the request might indicate. Remember that the scope of a regulatory investigation, for example, may evolve over time. As you review the request and your obligations, start strategizing about the information you will need to resolve the inquiry, and where to find that information.
Start Your Preservation Effort Immediately
Identify any information that is directly responsive to the subpoena or that may be otherwise relevant, and determine which custodians have control over that information. You’ll want to issue a timely hold notice that advises potential custodians of their obligation to preserve data. Using automated legal hold software and previously drafted hold templates will expedite and simplify this notice. Require custodians to acknowledge their receipt of and compliance with the hold.
Allowing the destruction of responsive information can explode the investigation of a single individual into an organization-wide debacle with severe consequences, so be sure all custodians understand that this legal hold supplants any routine evidence-destruction policies.
Provide Ongoing Updates to Requesting Party
As your collection and review of requested information proceeds, provide ongoing updates to the requesting party. If you’ve agreed on a rolling production schedule, be sure to keep everyone aware of upcoming delivery dates. Immediately inform the investigator if you encounter any unexpected problems that may delay production. Responding quickly allows the team to return to higher-value activities for the business, and prompt response also helps you remain compliant with Rule 34(b)(2), which states that parties have 14 days to object and 30 days to respond.
Crafting a Subpoena Response Based on the Case
Your exact response should depend on the individual facts of the case. If no one uncovered any wrongdoing and you felt confident and in control throughout the process, you can probably give yourself a hi-five and return to business as usual. If you did uncover questionable activities, talk with your legal counsel and HR department about appropriate next steps.
Planning for the Future
We understand that receiving a subpoena isn’t on anybody’s wish list, but if you keep your overall goals in mind, it may not be as bad as you fear. With the right tools and processes, you can protect your organization’s reputation and bottom line, and prevent a similar situation from occurring in the future. If you’d like to learn more about how to effectively craft a subpoena response, or stay up on best practices for dealing with subpoena requests, watch our on-demand webinar “Subpoenas and Third Party Records Requests with ZDiscovery Review”.
