Know the Law: Subpoenas Directed at Companies

Amanda Quinlan Headshot
Amanda E. Quinlan
Associate, Litigation Department
Published: Union Leader
April 3, 2022
News - Featured Image - Trial-Practice-and-Litigation

Q: A subpoena was served on my company, asking for the company’s deposition. What do I do?

A: In general, a subpoena is a written order to compel testimony on a particular subject, or to compel production of certain documents. A subpoena directed at an individual to testify is easy to imagine: the named individual attends the deposition (where a witness gives sworn testimony in response to attorneys’ questions) to share his or her personal knowledge under oath. However, litigants in state (and federal) court can direct a subpoena to an organization or a company instead, begging the question of who gets deposed under oath on the company’s behalf.

Say, for instance, an employer sues a former employee for breach of a non-competition or non-solicitation agreement. The employer might serve a subpoena on the defendant’s new employer, who – at least in this example – is not a party to the lawsuit. It might be that the plaintiff does not yet have enough information to know which individuals at the company have knowledge relevant to the lawsuit. Once the plaintiff learns more, nothing stops the plaintiff from deposing those individuals later on.

It is the subpoenaed company’s duty to designate at least one person – whether that person be an officer, director, managing agent, or anyone else who consents to testify on the company’s behalf – to appear and give testimony. In order for the company to make an educated choice about who will testify, the plaintiff here needs to describe what information it is seeking from the company in the subpoena itself or, in some cases, by speaking with the company or its counsel.

In our example, it might be that the plaintiff is interested in the nature and scope of defendant’s employment at the company, and/or how that individual was hired. Alternatively, the plaintiff could be interested in knowing about the company’s clientele, particularly if the plaintiff has alleged that the defendant breached a non-solicit. Depending on the subject area, the company might designate a different individual.

Should your company receive a subpoena, you must take it seriously: subpoenas carry the force of law, and there are critical deadlines for responding and raising objections to them. You should also speak to an experienced litigation attorney, as it is the company’s right to have counsel present for the deposition and register certain objections on the record.

Know the Law is a bi-weekly column sponsored by McLane Middleton. Questions and ideas for future columns should be emailed to [email protected]. Know the Law provides general legal information, not legal advice. We recommend that you consult a lawyer for guidance specific to your particular situation.