Responding to Subpoenas Received by Businesses, 0715 ALBJ, 76 The Alabama Lawyer 236 (2015)
| Author | James L. Mitchell, J. |
| Position | Vol. 76 4 Pg. 236 |
James L. Mitchell, J.
Your client received a subpoena and has just called you in a panic.
Questions abound on the other end of the telephone line. What does this subpoena mean? Why are we receiving it? Do we really have to respond this quickly? Should we fight it? What would be involved in responding to it? How disruptive will this be to our business? And what will it cost us to respond?
Fortunately, you have a firm grasp of the applicable rules, the process that must be followed, the critical traps inherent in that process and how to minimize expenses for your client as you guide them through that process.
Types of Subpoenas Most Commonly Received by Businesses
Depending upon the jurisdiction, numerous types of subpoenas are allowed as a means of assembling facts and information in a proceeding or investigation.
There are subpoenas for documents, testimony, inspection of physical premises, testing and sampling. For brevity, this article focuses on the types of subpoenas most commonly received by businesses across the industry spectrum-in the civil context, subpoenas for documents and testimony (either at trial or by deposition), and in the criminal context, subpoenas for documents or testimony (either at trial or before a grand jury).
Applicable Rules Of Procedure
It probably goes without saying, but you should always consult the applicable rules of procedure for whichever court or tribunal issues a subpoena to your client. This article focuses on the applicable rules in federal court and Alabama state court.1
A. Federal court
Federal Rule of Civil Procedure 45 sets forth the requirements for issuing and complying with subpoenas in a federal civil proceeding. There can be interplay between Rule 45 and Federal Rule of Civil Procedure 26 (generally governing the conduct of discovery), Federal Rule of Civil Procedure 37 (governing the filing of motions to compel) and the Federal Rules of Evidence (and, in a case where there is diversity of citizenship jurisdiction, applicable state rules concerning privilege).
Federal Rule of Criminal Procedure 17 generally governs the issuance of and compliance with subpoenas for documents or testimony in connection with a federal criminal proceeding. Rule 17 can interact with Federal Rule of Criminal Procedure 16 (generally governing the conduct of discovery in a federal criminal proceeding) and the Federal Rules of Evidence concerning privilege.
In addition, it is important to consult and follow the rules for the CM/ECF electronic filing system, the applicable local rules and any standing orders of the federal district and/or the judge to which any motion for relief may be addressed.
B. Alabama state court
There are different rules that govern subpoenas in Alabama state court. Alabama Rule of Civil Procedure 45 sets forth the requirements for issuing and complying with subpoenas for documents or testimony in a state civil proceeding. Like the federal system, Alabama Rule of Civil Procedure 45 often interacts with Alabama Rule of Civil Procedure 26 (generally governing the conduct of discovery), Alabama Rule of Civil Procedure 37 (governing the filing of motions to compel) and the Alabama Rules of Evidence concerning privilege.
Alabama Rule of Civil Procedure 45 and its federal counterpart, although worded and organized differently, are in many ways substantively similar. The primary difference, however, is that Alabama Rule of Civil Procedure 45 requires a party issuing a subpoena for documents to file with the court a "Notice of Intent to Serve Subpoena for Production" at least 15 days before the subpoena is issued (unless the court alters such time period), attach the subpoena itself and give every other party to the case an opportunity to serve objections to the subpoena within 10 days from the date the notice is filed.2 Federal Rule of Civil Procedure 45, likewise, requires a party serving a subpoena for documents to provide notice and a copy of the subpoena to every other party to the case prior to service on the non-party, but does not specify the degree of notice.3
Subpoenas in connection with a criminal proceeding in Alabama state court are generally governed by Alabama Rule of Criminal Procedure 17. Rule 17 can interact with Alabama Rule of Criminal Procedure 16 (generally governing the conduct of discovery in a state criminal proceeding) and the Alabama Rules of Evidence concerning privilege.
Intake and Analysis of a Subpoena
Once your client has contacted you about being served with a subpoena, it is time for you to swing into action.
A. Immediate steps to take upon learning that your client has received a subpoena
1. Review the subpoena.
The first step upon receiving a copy of the subpoena is simply to review it. The subpoena and its attachments should inform you of the court or tribunal from which the subpoena has been issued (thus leading you to the applicable rules of procedure), the party issuing the subpoena and that party's counsel, the date for compliance, what exactly is being sought from your client, the applicable time period for information sought, definitions of key terms and nuances such as confidentiality requirements.
2. Calendar all applicable deadlines.
Second, you should ensure that both you and your client have calendared all applicable deadlines. In doing so, you should consult the subpoena itself, which should include a date for compliance and the applicable rules of procedure.
3. Instruct your client about how to maintain privilege.
Third, you should caution your client about the importance of maintaining the attorney-client privilege and work product protection. Instruct your client about how to safeguard those protections in the course of complying with the subpoena.
4. If the subpoena is for documents, facilitate issuance of an appropriate litigation hold memorandum.
Fourth, if the subpoena is for documents, it is prudent for your client to issue an appropriate litigation hold memorandum within the company that facilitates preservation of all documents and information (including electronically-stored information) that may potentially be responsive to the document requests listed in the subpoena. As it would be if your client were a party to a case, this will require an analysis by you and your client of, among other things, likely custodians of documents and how such documents should be segregated for possible collection in the future. Depending upon what documents are being sought by the subpoena and the subject matter of these documents, the litigation hold memorandum may also need to be circulated to people outside the company, including outside directors, consultants, vendors and attorneys.
5. Notify key personnel within the company or extended corporate family.
Fifth, you should assist your client in determining whether it is necessary to notify persons within the company or extended corporate family, who may not be directly involved in responding to the subpoena, that the subpoena has been served. For example, it may be necessary to notify officers, in-house counsel or other personnel in a parent corporation that the subpoena has been received, if not as a matter of corporate policy then perhaps as a matter of prudence.
6. Educate yourself and your client about any confidentiality requirements.
Sixth, you should educate yourself-and your client-about any confidentiality requirements that may come into play in responding to the subpoena. For example, your client may be asked to produce documents that are subject to a nondisclosure agreement. Another example is the Grand Jury Secrecy Act under Alabama state law, which is more restrictive than federal law in granting rights of disclosure to subpoena recipients being asked to provide documents or testimony in connection with a grand jury proceeding.
7. Create and maintain a privileged file memo documenting your efforts in responding to the subpoena.
Seventh, it is prudent to create and maintain a privileged file memo documenting the process you are undertaking with respect to intake and analysis of, and your clients ultimate response to, the subpoena. This file memo should be updated as you continue to guide your client through the process of responding to the subpoena. Should the response process become lengthy and cumbersome, this file memo will be invaluable in helping you to identify action items that remain incomplete and, if ever necessary, to demonstrate compliance with the subpoena to a court and to reconstruct efficiently what steps you and your client have taken in satisfying legal obligations.
B. Analysis of the subpoena and its attendant risks for your client
Once you have reviewed the subpoena and put your client on solid preliminary footing, it is time to analyze the subpoena more deeply and gain a better understanding of what is being sought by the subpoena and what will be required of your client to comply.
1. Educate yourself about the underlying litigation or investigation.
First, you should learn as much as possible (without going overboard) about the underlying litigation or investigation. If the subpoena has been issued in a civil case, it is helpful to obtain a copy of the complaint and any key pleadings (e.g., motion to dismiss; motion for summary judgment). If the subpoena has been issued in a criminal proceeding, your ability to access information about the proceeding will likely depend upon whether any relevant indictments have been publicly issued. If a grand jury is continuing to investigate underlying matters, that process will remain secret and your sources of information will likely be limited to consultation...
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