What to do When You are Served with a

Subpoena in Commercial Litigation


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I’m Gary Nissenbaum.

Welcome to another edition of Laying Down the Nissen-law, a podcast in which we seek to do a deep dive into the pressing issues confronting businesses, both large and small, that seek to protect themselves from legal pitfalls.

Please keep in mind that this podcast is not a substitute for legal advice. Consult an attorney for any specific situations that require representation.

And now…on to the Nissen-law…

What Do You Do When Your Business Is Served With A Judicial Subpoena?

What should a business person do when they are served with a subpoena in a judicial proceeding—meaning in a litigation matter—that is directed to the business? How do you handle that? Well, there are a few basic concepts that you have to keep in mind, subject to the differences in state and federal law.

The first, is that you have to be aware that spoliation is a real possibility and a potential threat to the business. Now, you might say, “What is spoliation?” It’s a concept in which someone spoils the evidence that’s being produced, or that is subject to production, where they have a general sense that it may need to be produced in litigation, even if it has not been requested yet.

You can’t wipe clean hard drives that may be subject to production in the lawsuit. You can’t shred documents that may be subject to production in the lawsuit. The court system is relying upon the good faith of the people who are going to be testifying in that lawsuit, that those people who are testifying, who are producing documents, or those who are agents of those people, or those who are in the business but may not be part of the lawsuit, are going to exercise that good faith so that they’re not going to destroy the very evidence or potential evidence that judge or jury may need to see in order to reach a full and fair result.

Businesses Need to Have Protocols to Prevent Spoliation

Another aspect of this is that in order to prevent that spoliation, you need to have protocols in place at the inception, when it looks like there may be a claim in the offing—or definitely, when the claim has been filed. There has to be a procedure in place to maintain the integrity of that information, so that it is not inadvertently destroyed. What’s an example of this?

Well, an example—an obvious one—is if you have a cell phone or a computer that you’re replacing. If you literally destroy it, and then throw it out, you know, drill through the hard drives so that it can’t be used and then throw it out because you’re no longer going to have it in your possession, that might make sense in a normal situation. But in this situation, the fact that you’re drilling through that hard drive or getting rid of this digital equipment could be seen as spoiling the evidence. So as unusual as it may sound, you may have a situation where you have a computer that’s essentially a brick. It can’t be used. It’s obsolete. It’s been infected with a virus and you’re going to get rid of it—you can’t get rid of it.

“How is it that we produce emails, texts, and so forth without running afoul of the privacy interests and frankly, the right not to incriminate oneself?”

You have to box that up, put it in a place where it’s secure, and have a virtual chain of evidence to be sure that that is not being impacted by anyone else. That no one else is going through it, erasing it, or worse yet, throwing it out because it looks like junk. It may be junk, but it’s junk that may be subject to production in the lawsuit.

Another aspect of this that is frequently something that people overlook is, how do we engage in e-discovery, meaning how is it that we produce emails, texts, and so forth without running afoul of the privacy interests and frankly, the right not to incriminate oneself? That question is a particularly difficult one, given the volume of those communications.

The first thing that has to be done is, you need to review the subpoena, review the notice to produce, to be sure that you understand completely what is being asked. This process normally has to be done through an attorney because there’s nuance and there’s case law as to how to interpret the various wording of the production request. What exactly can be kept out of the production and what has to be in that production? Second, is when you have that subset of items that have to be produced, who is going to review it to determine whether there’s anything in there that, though arguably relevant to the request, should not be produced because there’s a privilege.

This might be attorney-client communications. This might be work product, which is material that was created in anticipation of litigation and represents litigation strategy. It could be someone that might inculpate someone in a crime, as to which there’s a Fifth Amendment privilege. There are a host of reasons why you might not have to produce something or you might maintain that there’s a privilege against that production. The more important issue is, how do you ensure that you’ve gone through everything so that you’ve rooted all of that out?

And the answer to that is, that you have to usually have someone look at it item by item. It has to be done on a granular level. There’s really no such thing as just a general word search to see if there’s anything there and if not, we’re good to go. This could easily mean that there has to be an extension of time requested to produce the material. It might also mean, at the more extreme example, that you need what is called a discovery master, a special master.

There are different terms for this but generally, what a special master does, is they are appointed by the court to parse through material that may be subject to production, but there are certain parameters as to things that may be properly withheld. It’s entirely possible that it is so complicated, and there are so many things, that it may just be too much for the judicial system to handle on a normal motion day. And therefore, a special master is appointed to parse through everything, make a report, generally to the court and all the parties, and make recommendations as to what should and should not be produced.

And that’s something that is very common nowadays because of the volume of digital materials that are produced in discovery in civil cases, and it’s something that can often break the logjam when the parties are just at loggerheads and they’re just unable to agree on what should and should not be produced.

One more thing that is really important in this area: It is so easy to respond to a simple request for documents that really, you think don’t exist, by simply sending a letter and saying, “We don’t have anything,” with the understanding that you don’t even need a lawyer for that. That, you know, you look at the request, it’s obvious that you don’t have those things. Why hire a lawyer? Why not just say you don’t have them and that’s the end of it? I urge you not to do that.

Have an Attorney Involved From the Beginning to Protect Your Business

And the rationale is that, although you may think that the subpoena or the notice is asking you for one thing, it may actually implicitly encompass something else or the wording might be interpreted a different way, based on such things as an evolving case law, or even a statute that you may not be familiar with. It is vitally important that you have an attorney involved at that incipient stage so that even if you’re not going to produce anything, you’re doing it subject to various disclaimers, various conditional language, and so forth, so that later on, if it turns out that there really is something, or that you thought it meant one thing but it actually meant something else, that there is a record that is being created as to what your assumptions are and what the conditions of your non-production are.

This is Gary Nissenbaum. Please visit us again for another episode of Laying Down the Nissen-law. Thank you.

Legal disclaimer: The information contained in this podcast does not constitute legal advice, nor a legal opinion. It should not be relied upon in any specific situation. The reader is urged to consult an attorney of their choosing with respect to any legal question they may have.

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