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Know the Law: Subpoenas for Company Records

Written by: Benjamin B. Folsom

Published in the Union Leader (5/25/2019)

Q: I have a business and received a subpoena saying I have to produce company documents. The subpoena seems broad, and some documents I am being asked to turn over contain confidential business information. Do I really have to respond and, if so, what should I do and will I have to produce everything asked for?

A: Do not ignore a subpoena. While addressing a subpoena is an imposition, the potential consequences of failing to act are worse. Doing nothing may land you in trouble with a court, and you could face monetary or other sanctions that, among other things, are of public record.

It may be that you ultimately do not have to respond to the subpoena, though this is uncommon. For example, your company may fall outside of the subpoena power of the court where the underlying lawsuit is pending. However, making such a determination involves a legal analysis that should be done by an attorney.

When you receive a subpoena, you should first figure out the deadlines to make formal objections and to produce documents in response to the subpoena. Reasonable extensions can usually be negotiated with the attorney who issued the subpoena. You should also assess what company documents fall within the scope of the subpoena and take steps to ensure that they are not destroyed or altered.

Exactly what records you have to produce depends on what is specifically requested and what grounds you have to object. Generally speaking, there are rules protecting subpoena recipients from undue burden and expense. If the subpoena will require you to produce a large quantity of documents and searching for and gathering the responsive documents will require significant effort and expense, you may have valid objections. Agreements to narrow the subpoena’s scope can often be negotiated.

If responsive documents contain confidential business information, you may also have a valid objection. At a minimum, you will want to ensure there are adequate protections in place for these confidential documents before producing them. This could include a confidentiality agreement specifying who can see the documents and under what circumstances. You may need to seek relief from a court to protect your company’s confidential information.

Remember that a subpoena is a legal document. If you have any questions or doubts about how to respond, you should seek advice from an attorney.

Ben Folsom can be reached at [email protected].

Know the Law is a bi-weekly column sponsored by McLane Middleton, Professional Association. We invite your questions of business law. Questions and ideas for future columns should be addressed to: McLane Middleton, 900 Elm St., 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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