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Know The Law: Ignoring a Subpoena

Written by: Jeremy T. Walker

Q. My company received a document subpoena relating to litigation in which my company is not involved. Because it originates from a federal court in another state, can we ignore the subpoena?

A. Generally speaking, simply ignoring a subpoena is not a viable option, at least not initially. Document subpoenas, as opposed to subpoenas issued to compel testimony, are commonly issued in various types of litigation proceedings. Courts can hold individuals and businesses in contempt for failure to comply with a document subpoena, and such failure could lead ultimately to monetary sanctions. The fact that the subpoena came from a federal court in another state is not a valid basis for ignoring the subpoena. Subpoenas can be issued to companies not involved in the underlying litigation, and in federal court litigation, subpoenas can be served even in states outside of where the litigation is pending.

Upon receipt of a document subpoena, the first step should be to review the subpoena carefully to determine the deadline for responding, and that deadline should be properly calendared. Next, all employees who may have documents responsive to the subpoena should be put on notice to preserve all such documents and take measures necessary to ensure that responsive documents are not destroyed.

Your company should next consider whether it has any objection to producing the documents requested.  It may be that your company has very few responsive documents and it would be little burden to produce them.  In that case, it may be easiest and cheapest to simply produce the documents.  

If, however, complying with the subpoena would be considerably burdensome or expensive, you may want to consider other options. Furthermore, if the subpoena demands documents that contain confidential business information of your company, you likely have certain options to protect that information. You may be able to work out an agreement with the attorney who issued the subpoena to reduce the scope of the documents to be produced.

Short of an acceptable agreement, you can issue formal objections to the subpoena on particular grounds and force the issuing party to file with the court a motion to compel. In some circumstances, you may want to ask a court to “quash” the subpoena so that your company does not have to respond at all. When production of the requested documents is too costly or requires production of sensitive information, you should seek counsel to review the subpoena.

Jeremy Walker can be reached at [email protected]

Know the Law is a bi-weekly column sponsored by The McLane Law Firm.
We invite your questions of business law. Questions and ideas for future columns should be addressed to: Know the Law, The McLane Law Firm, P.O. Box 888, Manchester, NH 03101 or 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.

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