Act Promptly to Avoid a Case of the Subpoena Service Homesick Blues
“Look out kid. It’s somethin’ you did. God knows when, but you’re doin’ it again.”
From Subterranean Homesick Blues by Bob Dylan
Look, maybe it was nothing you did, but something that someone you do business with did. In either instance, if you do not handle properly the service of a subpoena seeking documents, you might get a bad case of the “subpoena service homesick blues” – you could end up both blue and homesick for the days before you were served with the subpoena.
Don’t Wait to Address a Subpoena
Suppose you are sitting in your office late on a Friday afternoon, looking forward to your weekend, when you are handed a subpoena asking you or your company to produce in 30 days a multitude of documents and electronically stored information, including e-mails and text messages. The subpoena relates to a lawsuit where one of your former suppliers has sued its bank, alleging that the bank’s negligence caused the supplier to lose you as a customer, and the subpoena seeks those documents and electronically stored information as part of the pretrial discovery process.
After your immediate irritation subsides, you might be tempted to put the subpoena aside and deal with it later. (After all, you have 30 days to comply with it.) Resist that temptation, because the clock is ticking rapidly. You must get the subpoena to a litigator, who can help you ward off any improper requests, protect any privileges you might possess, and hopefully avoid or mitigate any unduly burdensome or expensive obligations.
After a Subpoena: What Are Your Protections?
In our hypothetical situation, the Maryland Rules of Civil Procedure would allow you to file any objections you might have to those requests. If you did that, you would not be required to produce the items that are the subject of your objections unless the party who served the subpoena filed a motion with the court and obtained an order compelling production. The Federal Rules of Civil Procedure contain similar provisions governing cases in the federal courts.
However, there are strict time requirements and time is of the essence. In Maryland state courts, the objections must be raised within 10 days after service of the subpoena, while in federal courts the objections must be lodged within 14 days of service. Thus, it is imperative that you get the subpoena in the hands of a lawyer as quickly as possible so that he or she can help you determine whether you should object to any of the requests in the subpoena.
Both the Maryland and Federal Rules contain other protections. Maybe the subpoena does not allow you the required amount of time to respond or requires you to produce the documents or electronically stored information, or seeks confidential and proprietary information. In those instances, if you have not already raised those points in a set of timely filed objections, you could move for a protective order or to quash the subpoena. If you think the subpoena seeks information protected by the attorney-client privilege or another privilege, you must act promptly to assert the privilege and take steps to protect yourself.
Courts may also take steps to minimize the cost, inconvenience, and expense of complying with the subpoena. But the court cannot act unless you bring those issues to the court’s attention. Again, you cannot wait until the last moment to take those steps.
In short, if you receive a subpoena for documents or electronically stored information, get in touch with a lawyer, and do it as soon as you can. You have protections available to you, but they won’t be available forever. If you do not act promptly, you might get a bad case of the subpoena service homesick blues.
Brad McCullough is an appellate attorney who represents businesses and individuals in a wide variety of cases in federal and state trial and appellate courts. For more on handling subpoenas, contact him at firstname.lastname@example.org or 301-657-0734.