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June 22, 2016

Best Practices: Dealing With Those Damned Discovery Subpoenas

by Norman E. Greenspan

It’s bad enough having to be subjected to the seemingly ridiculous discovery obligations when your company is involved in a lawsuit, but having to provide documents and/or testimony in lawsuits where you are not even a party is even more aggravating. Financial institutions are repositories for lots of sensitive and potentially embarrassing information regarding its customers, and are often the recipients of pre-trial discovery subpoenas seeking information whose production will be discomforting to a financial institution’s customers, as opposed to being relevant to the lawsuit. What are you to do? What rights do you have, and what can you do about it?

Subpoenas are the means by which parties to a lawsuit require non-parties to provide information pre-trial in the form of testimony, or to provide or produce for inspection documents or tangible things, or to appear at trial. The procedures by which subpoenas are issued, served and enforced are usually contained in the court’s rules of civil procedure. Each state has its own rules, as do the federal courts. A subpoena is issued by a court, and the court has the power to enforce the subpoena usually by holding the non-complying non-party in contempt for ignoring the court issued subpoena.

A subpoena is enforceable only if it is properly issued and served. If not, it is considered a nullity. Most court civil rules are very specific regarding form, issuance and service of subpoenas. Many courts today have on-line subpoena forms that can be filled-in with the needed information and then printed, signed and served. Consequently, there is rarely a subpoena form or subpoena issuance mistake. Often, however, there are service mistakes. For example, in federal court, subpoena service must be by hand delivery. Service by fax or email is not effective and the subpoena is not enforceable. However, for expediency sake, often attorneys attempt to serve subpoenas by mail, fax or email with the expectation that the recipient will not know that the service is improper.

The biggest problem with subpoenas is that they are often overbroad in the request for documents or other information to be produced. For a long time in federal court (and still today in most state courts), if a subpoena was overbroad, or imposed an undue burden or expense, it was the obligation of the responding party to go to court and file a motion to quash or modify the subpoena. This itself imposed an undue burden and expense. However, absent a modification of the subpoena, the subpoena remained a court issued requirement to comply, and non-compliance was viewed as contempt of court. Therefore, the responding party had little choice but to comply with the subpoena as written and served.

Several years ago, the Federal Rules of Civil Procedure, which are the subject of ongoing modifications, changed the procedure by which a burdensome subpoena can be challenged. Some state courts have adopted similar changes. As a result of the changes, the Federal Rules now require the issuing party to avoid undue burden or expense on the person receiving the subpoena, and has provided the receiving party with an effective mechanism to force the issuing party to comply. It is the issuing party’s duty to avoid undue burden or expense on the person subject to the subpoena under the threat of sanctions, including the imposition of attorney’s fees on the issuing party.

Now under the Federal Rules, if you receive a subpoena that you believe requires you to incur undue burden or expense, there is a procedure you can use that shifts the burden to the issuer. Under Rule 45(d)(2)(B), the receiving party has the right to object to the subpoena. The objection is served on the issuing party the earlier of 14 days after the subpoena is served or the date for compliance. The rule does not specify a form of objection, or the means by which the objection is to be sent. So, the objection can be by letter, fax or email to the attorney representing the issuing party. Once the notice has been sent, the obligation to comply with the subpoena is effectively suspended. The burden is then on the issuing party to file a motion with the court to compel. The court is obligated by the Rules to protect a third party from significant expense resulting from compliance. If there are modifications because the subpoena imposed an undue burden, the issuing party is subject to sanctions for its having issued an inappropriate subpoena.

As a practical matter, as the result of making the objection, negotiations ensue to modify the scope of the subpoena and to reduce the burden on the responding party. The result is a practical solution to the problem of a burdensome subpoena.

For more information, please contact Norman Greenspan at ngreenspan@starfieldsmith.com or at 215-390-1025.