Navigating a Subpoena

Dear Donna,

My firm was recently served with a subpoena for deposition testimony.  We plan on handling it internally.  Do you have any tips or advice on how to handle this? 

Very truly yours, 
Seen A. Subpoena 

Dear Seen A. Subpoena, 

I am happy that you brought this issue up as many firms do not take the possible outcomes of a subpoena seriously.   

To state the obvious, a subpoena is a legal tool for a party to obtain information.  It can be a fishing expedition for a former client to obtain evidence to bolster a claim against your firm. You should report the subpoena to us and any other insurance carrier that may have coverage for it, as soon as practicable. Your firm and the claim handler can then decide on a plan, and whether retention of an attorney on your behalf is warranted. You also want to report the subpoena to avoid possible coverage issues down the road, such as prior notice or claim mitigation. 

We also have had claims against firms in relation to firm's responding to subpoenas on behalf of clients.   

Some tips and advice for both scenarios: 

• View subpoenas as a wolf in sheep's clothing! Take them seriously!   
• Tip of the iceberg!
  Obtaining a subpoena has a very low bar, but likely much has gone on before it was issued.  There may be larger issues that you are unaware of. 
• Plan a Response Strategy: Retaining an attorney, if appropriate, can assist with formulating a response, particularly if the matter is complex or likely to lead to litigation.
  - Don't waive the attorney client privilege.
  - Should any objections be made?
  - Is a Motion to Quash or Modify appropriate?
  - Is a Protective Order required?
  - Do you require an extension of time to respond?
  - How does the subpoena request that you respond? 
• Understand the Scope.
  Carefully review what is being requested, the deadline and the format for responding. 
• Some parties serve a subpoena and then check the respondent's trash!  Advise your clients to think twice about what they throw away.   
• For document production, look aggressively on what should be produced the first time. If you find something responsive later, it looks BAD. Document production should not be delegated to someone who is not very capable and thorough. 
• Review what is being produced!   
• Bates stamp or number the documents. 

Best practices if served with a warrant: 

• Do not panic! Assert all privileges to law enforcement.   
• Do not argue privileges with law enforcement to avoid lack of cooperation.  Rather, set up the privilege to argue later. 
• Make no statements. You do not need to speak to the FBI or other law enforcement. 
• Ask no questions. You do not want a report written up reiterating anything you might have said. 
• Do not send any emails or make any phone calls. There may be a wire. 
• Warrants are generally not fishing exhibitions. Seek the assistance of counsel as soon as possible. 

If you or your client are served with a subpoena, keep your obligations to respond in mind to protect your and/or your client's rights and legal interests.  

Sincerely, 
Donna

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