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

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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:

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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

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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.

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Procedural DefectsProcedural Defects

Fees &Mileage

PersonalService

100 MileRule

Issuing Signature Beyond Close

of Discovery

Who May Serve

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RelevancyRelevancy

Relevancy

Pertains toClaim or Defense

AdmissibilityUnimportant

Not Privileged

ReasonablyCalculated

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Undue BurdenUndue Burden

OtherMeans

UntimelyService Health

Issues

ExcessiveCosts

Overly Broad

Examples

What you need is:

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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).

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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

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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.

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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 | rlh@muslaw.com

www.muslaw.com