Subpoena Response Protocols
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Transcript of Subpoena Response Protocols
© Meyer, Unkovic & Scott LLP 2009
Discussion TopicsDiscussion Topics
1. Learn About The Lawsuit 1. Learn About The Lawsuit
2. Assess Risks 2. Assess Risks
3. Determine Possible Objections 3. Determine Possible Objections
4. Present Objections 4. Present Objections
5. Comply With Subpoena 5. Comply With Subpoena
© Meyer, Unkovic & Scott LLP 2009
Discussion TopicsDiscussion Topics
1. Learn About The Lawsuit 1. Learn About The Lawsuit
A valid subpoena cannot issue absent a pending federal or state civil, criminal or administrative proceeding.
A subpoena may not be used to compel a person to appear or produce documents ex parte before an attorney or party.
© Meyer, Unkovic & Scott LLP 2009
Learn About The LawsuitLearn About The Lawsuit
OpposingCounsel
Caption IssuingAttorney
Orders& Rules
Target
Information
What you need is:
© Meyer, Unkovic & Scott LLP 2009
Discussion TopicsDiscussion Topics
2. Assess Risks 2. Assess Risks
Risk assessment includes weighing both the risks and benefits, if any, in complying with the subpoena.
Risks fall into five areas: Response Costs; Relationship Costs; Costs of Becoming a Party; Costs of Other Lawsuits; and Harm from Public Disclosure.
© Meyer, Unkovic & Scott LLP 2009
Assess RisksAssess Risks
ResponseCosts
Relationship Costs
Party Costs
Other Lawsuits
Appearance Fees
Attorneys’ Fees
Copying Costs
Public Disclosure
Owens v. QVC (EDPA)
NMH v. Ashcroft (7th)
“Fishing Expedition”
MGM Studios v. Groskter (D.Del.)
Threat not proper obj.
Self-incrimination
Other privileges
Party’s private information
3rd PartyInformation
Trade Secrets
© Meyer, Unkovic & Scott LLP 2009
Discussion TopicsDiscussion Topics
3. Determine Possible Objections 3. Determine Possible Objections
Objections can attack both the procedure and substance of the subpoena.
Failure to raise objections before or at the time of compliance may constitute waiver.
© Meyer, Unkovic & Scott LLP 2009
Procedural DefectsProcedural Defects
Fees &Mileage
PersonalService
100 MileRule
Issuing Signature Beyond Close
of Discovery
Who May Serve
© Meyer, Unkovic & Scott LLP 2009
RelevancyRelevancy
Relevancy
Pertains toClaim or Defense
AdmissibilityUnimportant
Not Privileged
ReasonablyCalculated
© Meyer, Unkovic & Scott LLP 2009
Undue BurdenUndue Burden
OtherMeans
UntimelyService Health
Issues
ExcessiveCosts
Overly Broad
Examples
What you need is:
© Meyer, Unkovic & Scott LLP 2009
Possession, Custody or ControlPossession, Custody or Control
Actual possession or legal right to obtain documents on demand.
“Practical ability” to demand = ability to enforce compliance with demand.
“Possession, custody or control” is coextensive with other discovery rules.
© Meyer, Unkovic & Scott LLP 2009
Unreasonable Response TimeUnreasonable Response Time
Unreasonable response time is a matter of the court’s discretion.
“Fails to allow reasonable time for compliance” is a stated grounds to quash under Fed.R.Civ.Proc. 45(c)(3)(A)(i).
© Meyer, Unkovic & Scott LLP 2009
Trade SecretsTrade Secrets
It is rare that a federal or state court subpoena is quashed on the basis of trade secret or confidential information.
Fed.R.Civ.Proc. 45(c)(3)(B)(i) authorizes the quashing of a subpoena to prevent disclosure of trade secrets and confidential information. The rule is not absolute.
© Meyer, Unkovic & Scott LLP 2009
PrivilegesPrivileges
QualityReview
Tax Preparer
Accountant
Attorney-Client & Work Product Sarbanes-Oxley
Investigation
Self-Critical Analysis
© Meyer, Unkovic & Scott LLP 2009
Discussion TopicsDiscussion Topics
4. Present Objections 4. Present Objections
State civil procedure rules usually mandate filing of a timely motion for protective order.
Federal civil procedure rules permit not only the filing of a timely motion for protective order, but also service of written objections to document requests within 14 days or before date of compliance.
Burden of proof is on you.
© Meyer, Unkovic & Scott LLP 2009
Discussion TopicsDiscussion Topics
5. Comply With Subpoena 5. Comply With Subpoena
A valid subpoena cannot be ignored.
Failure to comply with a subpoena may result in a contempt proceedings.
Contempt of a subpoena is generally punished by way of fine.
© Meyer, Unkovic & Scott LLP 2009
Questions & AnswersQuestions & Answers
Ronald L. Hicks, Jr., EsquireMeyer, Unkovic & Scott LLP
535 Smithfield Street
Suite 1300
Pittsburgh, PA 15222
412.456.2837 | [email protected]
www.muslaw.com