Responding to Subpoenas Springfield Metropolitan Bar Association Doug Healy March 25, 2013

Responding to Subpoenas Is it enforceable? Which Court/Administrative body issued the subpoena? Jurisdiction? Properly served? Action if enforceability is in question?

Responding to Subpoenas If enforceable, what next? Time to respond Scope of subpoena proper? Motion to quash or other objection to subpoena? Contact issuing and opposing counsel?

Responding to Subpoenas Look at underlying action Does underlying action involve client, employees, or BOD? Could underlying action involve client, employees, or BOD? What circumstances require notifying BOD? How much investigation into underlying cause of action should you do?

Responding to Subpoenas FRCP written objections to a subpoena Burden is on requesting party to ensure subpoena is not overly burdensome If request is for documents, consider filing written objections to requesting part if request is overly broad, burdensome or vague or requests privileged material. [FRCP 45(c)(2)(B)]

Responding to Subpoenas FRCP quashing or modifying a subpoena (3) Quashing or Modifying a Subpoena (A) When Required. On timely motion, the issuing court must quash or modify a subpoena that: (i) fails to allow a reasonable time to comply; (iii) requires disclosure of privileged or other protected matter, if no exception or waiver applies; or (iv) subjects a person to undue burden.

Responding to Subpoenas Mo.Rul.Civ.Pro (c) is the Missouri equivalent to FRCP 45 for third-party subpoenas If objecting or quashing the subpoena, look at 56.01(c) if you wish to obtain a protective order to limit disclosure If not filing for a protective order, any objection to the subpoena is served to all parties of record; up to issuing party to file a motion to compel and bring the matter before the court

Responding to Subpoenas Duty In Responding to Subpoena Once you have made a determination that the subpoena is enforceable and of proper scope, what all should you do to comply?

Responding to Subpoenas Duty In Responding to Subpoena (d) D UTIES IN R ESPONDING TO A S UBPOENA. (1) Producing Documents or Electronically Stored Information. These procedures apply to producing documents or electronically stored information: (A) Documents. A person responding to a subpoena to produce documents must produce them as they are kept in the ordinary course of business or must organize and label them to correspond to the categories in the demand. (B) Form for Producing Electronically Stored Information Not Specified. If a subpoena does not specify a form for producing electronically stored information, the person responding must produce it in a form or forms in which it is ordinarily maintained or in a reasonably usable form or forms. (C) Electronically Stored Information Produced in Only One Form. The person responding need not produce the same electronically stored information in more than one form.

Responding to Subpoenas But if Administrative Agency/Commission, remember to look at the appropriate CFR or CSR or applicable statute Most Administrative bodies have their subpoena/investigatory power procedures in their rules, including the proper procedure to object to a subpoena as well as how to properly respond.

Responding to Subpoenas Duty In Responding to Subpoena Privilege Work Product Trade Secrets Attorney Client Third Party Privacy Rights HIPAA

Responding to Subpoenas Regardless of whether you object or attempt to quash the subpoena, once you receive a subpoena…. Litigation Hold to all employees All or just those who would have information Search affiliated companies Include IT personnel in search Monitor search for documents

Responding to Subpoenas Engage outside counsel? When or Why? Conflicts Document Search Assistance Prior dealings with requesting party

Responding to Subpoenas Failure to Respond to a Subpoena Contempt Always respond, whether it is by motion to quash, modify, objection, or protective order; or by compliance with subpoena