Businesses, large and small, are served with subpoenas with regularity. My experience leads me to believe that many businesses do not understand the significance of subpoenas. The purpose of this article is to provide some recommendations for handling subpoenas.
First, what is a subpoena? Although subpoenas are usually signed by attorneys, rather than by judges or clerks of court, they are nevertheless court orders. The reason is that attorneys are advocates, but they are also officers of the court. Both the applicable federal and Virginia rules provide for the issuance of subpoenas by attorneys.
Subpoenas come in different forms. Some demand the production of documents; some demand the appearance of a witness for testimony; some demand both. In any event, the recipient of a subpoena must provide what it demands and only what it demands; object to portions of it; or seek to have it quashed by a court of competent jurisdiction. It is essential that you engage counsel to assist you in complying with a subpoena because failure to comply could result in a finding that you are in contempt of court.
Many subpoenas are overbroad and your counsel can sometimes work with the issuer to agree to narrow the scope of the subpoena. If an agreement cannot be worked out, then your counsel may wish to file objections as well as a motion for a protective order or a motion to quash the subpoena.
Some subpoenas, of course, are fairly innocuous. Your counsel will work with you in responding properly to a subpoena, especially with respect to the preservation and production of electronically stored information (“ESI”). More and more litigation all over the country, in federal and state courts, concern ESI that has disappeared for one reason or another.
If your business has professional liability insurance (“PLI”), it is essential that you notify your PLI carrier. Many such policies contain coverage for handling subpoenas and many PLI policies require you to notify the carrier immediately upon receipt of a subpoena.
In conclusion, treat subpoenas very seriously.