FTC Subpoenas can be overwhelming. Understanding what the agency is looking for and what the company has, negotiating response parameters, and implementing appropriate review and production measures can help minimize business disruption and make the response process more manageable.
Five key considerations include:
- Analyze the Subpoena Request- Is the subpoena a quasi-form request or is it tailored to the company’s specific data processes? How does it compare to prior subpoenas received by the company, if applicable? Are there opportunities to leverage prior subpoena responses or negotiated scope limits if the company has responded previously to an FTC subpoena?
- Assess Location of Data- What types of information does the company possess and how is it kept? Discuss early on with company stakeholders (including in the legal department, relevant business units, and IT personnel) the substance of the requests and gather information about company data and processes to help focus the company’s response. Internal discussion items for careful analysis include: type of data requested, date scope, custodians/systems/shared locations that may house relevant data, and methods to help identify, collect, review, and produce relevant responsive documents
- Negotiations with the FTC- Items for discussion to help minimize burdens may include:
- Subpoena scope- to help narrow scope, consider discussing date scope, geographical region, custodians, areas/storage methods to be searched, availability of documents or data, types of information the company keeps in the regular course of business
- Technical or administrative matters– to help meet delivery needs and expectations, consider discussing response timeline, ability to make submissions on a rolling basis, phasing categories of data (are there some categories that the FTC wants earlier in the process and others that can be deferred), ability to limit produced data to data in active storage (eliminate the need to pull from backup tapes or archives data collection that would be unduly burdensome)
- Collect and Review Responsive Documents- Some steps include:
- Assess -whether documents or data reside in central locations or databases that may cause collection challenges or may require specialized collection processes;
- Communicate deadlines- including internal response timeline (for collection through review and production, with time for reminders and late submissions built in);
- Collect in format needed for review and production- use specific, clearly communicated processes to collect documents in the format needed for review and production;
- Specify production format early on- specify format and accompanying metadata needed for production during the collection process;
- Analyze for privilege and confidential information- build in time to make appropriate redaction for responsiveness and privilege, identify privileged documents needing to be withheld from production, and create a privilege log according to FTC specifications, if required
- Production to the FTC- Does the subpoena address special production requirements (e.g., formatting, encryption, logging of documents, treatment of metadata)? Consider including IT or litigation support to help ensure compliance with technical instructions, and to prepare the production to the FTC