Not the Best Way to Start Your Week
(Monday Morning 8:07 a.m.)
our receptionist walks in and hands you an envelope. As you open it up, you recognize the format and see the word SUBPOENA printed on the first page. The receptionist says someone just handed it to her and left . . . didn’t say a word. You know you have no lawsuits going on. The last one settled last month. You paid the lawyer’s invoice. That pain is still vivid. It’ll be a hundred bucks just to call him about this! And then he’ll answer every question with a question. Twist it around and into a question.
(Monday Morning 8:12 a.m.)
Scanning the crisp paper quickly, your glasses slip down your nose. You focus on the names. Bold. Black. Names. Don’t know who they are. Looking it over closer, you see something is scheduled? A deposition? Not again! Oh, the custodian‘s deposition? Must mean the janitor. Isn’t “maintenance man” more correct? Luke? Yeah, Luke.Wonder what he did? Custodian! He cleans and maintains – He doesn’t custody! The stark letters form words that look like English, just not the everyday kind of English. Subpoena Duces Tecum. Must be some special subpoena.
Duces Tecum? D-u-c-e-s Tecum. Duces T-e-c-u-m. D-u-c-e-s- T-e-c-u-m?
(Monday Morning 8:15 a.m.)
Oh, wait. The maintenance guy’s name is Duke. Not Luke! Duke Tayler . . . or something or other? Dukes Tatum? Deuces Takem? Ducks Teacup? You toss the envelope aside—not you this time.When Duke gets in you must tell him. Poor guy. After staring at it for far too long, you give in and pick up the envelope again. You pull the papers out and iron them flat. Date and time. Only a week away. Hope Duke can find a lawyer by then.
(Monday Morning 8:17 a.m.)
Flipping the page, there’s a description of what’s wanted. Sounds like a project you did a year ago. Sounds the same. Maybe longer than a year? Why would the janitor have a project file like this? Moonlighting? Stealing company secrets? Yeah right. It sure is specific. Horowitz & Associates. Horowitz? Horowitz? The Horowitz file! “To Custodian of Records: You are commanded to appear with all documents in your possession and under your control, relating in any way to the transaction between . . . .” Custodian of Records? Of Records! It wasn’t the janitor. It’s like custody. The Custodian of The Records! It’s not Duke. It’s you. Again. Damn it. Alright. You get it now. But where would that file be? And a week? Only a week? And if not? Then what? Duces Tecum!
(Monday Morning 8:20 a.m.)
The way the subpoena is worded it seems like they want documents that are not related to the project too. Some documents listed are full of confidential information. Your confidential information. No one sees that except you and some of the senior managers. And only when they need to. Need-to-know basis only. Some of it i s the client’s financial records. You can’t just hand that over . . . Can you? Do you have to? Maybe you should call Horowitz first? Is that legal? Duces Tecum?
(Monday Morning 8:22 a.m.)
Oh boy. This covers more than finances. It covers Horowitz’ processes too. Didn’t you sign something saying you would not disclose that information? And if you did there’d be hell to pay? Horowitz’ competitors would love to see this stuff. Proprietary systems and designs. The procedures and process. The underlying data. Trade secrets. Hell, your competitor’s would like to see your stuff in that file too. It’s not like Horowitz’ records, but . . . If it’s a lawsuit it’s public, right? Anyone can see it? That can’t be allowed. Can it? They can’t just do this! Or can they? Damn lawyers.
(Monday Morning 8:37 a.m.)
Last time you spoke to Horowitz was the day the deal closed. It was fourteen-sixteen-some months ago. You don’t know if you can, or should, or want to call him. Just look through the files first. Figure out what’s really in there. It might not be nothing. Maybe you’re the wrong custodian and don’t have the right records? Maybe it’s a mistake? Know soon enough. Duke’s on his way out to the off-site storage. But it will still take time to find the file. You could just call the lawyer who signed the Subpoena? Won’t have to pay for that. Can you trust him? What if he tricks you? Not good. Dunce To-sum? It’s already disruptive and may jeopardize your relationship with a good client. This is the last thing you want to deal with right now. What do they think gives them a right to do this? You did nothing wrong. Horowitz? Maybe. But the deal is closed. Done. Over with. Maybe you should have returned the original file to him? Maybe that should be the new policy. And who’s paying for this wasted time? Duke doesn’t work for free! And he bills his mileage at the IRS rate. Twenty five miles to the gallon at fifty six cents per mile? Gas ain’t $14.00 a gallon! And he takes the long way back every time, too.
Instruct and Define
(Monday Morning 8:41 a.m.)
As you’re looking for your good pen on your desk, you notice a page sticking out from the envelope the subpoena came in. Must’ve missed it. Sticking out from the envelope is the stapled corner of another document. Pulling it out while unfolding it, you read the title, “Schedule A—Instructions and Definitions.” Hmm? They already asked for the whole damn file, what more could they want? The boxed up file is all you got. Wondering what more there might be, you read Schedule A’s Instructions and Definitions. The everyday words, “Instructions and Definitions” now sound foreboding.
Every Stupid Item
(Monday Morning 8:44 a.m.)
With your stomach already burning it slowly starts to churn. You look at what is on the last, and almost overlooked, pages. You read through the Instructions and Definitions. Twice. To be certain. Okay, they want every piece of paper related to the file. I get it! But gawd. For real? There is no way! For the third time, you slowly read the paragraph again (hoping it may have changed):
. . . all electronically stored information (ESI). You have an obligation to keep all potentially relevant internal and external emails sent or received. Email must be preserved in electronic format, regardless of whether hard copies of the information exist.
All devices with either magnetic core or solid state random access memories should be immediately placed in a litigation hold and preserved until further notice. Remove all backup drives, tapes or other media out of regular rotation. Due to its format, electronic information is easily deleted, modified or corrupted (i.e., by data compression, disk de-fragmentation, or optimization routines). ESI must be produced to retain the associated metadata. When produced, it should be in native format and include single page TIFF files, Bates Numbered with OPT and DAT load files retaining all associated file.
(Monday Morning 8:53 a.m.) Your computers? Okay. You get it. You’ll call the IT guy too! What the hell is TIFF? And OPT DAT? Sounds like some pop star or a military acronym used only during wartime. What is the IT guy’s number filed under? Computer . . . Something … Tech … Something …Team? He’ll know what to do. He’s so damn expensive he better know what to do. Not as expensive as the lawyer. But sometimes the IT guy makes things worse. Way worse. He does make them better, but first it’s worse. Actually, the lawyer does that too. What is it with . . . oh no. You haven’t paid the IT guy’s invoice since . . . shoot! It’s at least ninety days past due. Is he going to even take your call?
So many questions?
(Monday Morning 8:56 a.m.)
Where do you even start? What do you have to do and by when? What happens if you don’t do anything or don’t do it on time? Do you have any rights? Can you get more time? Do you really have to give some random attorney access to your company’s trade secrets? To your client’s secrets too? It’s proprietary and valuable. He’ll fire you. Can your client sue you if you comply and hand over his trade secrets? What if you signed an NDA? Is this all public information now? Can all of our competitors can just go take a look and see it? And access to your servers? Are the computers going to be down? How are you supposed to get anything done and meet deadlines? Should you even have your employees come into work? Do you just send everyone home for the next week? Can you even stay open at all? And who is paying for all this down time? And the IT guy? And the lawyer? And the copying? And Duke’s mileage? Do you have any options? How much of this burden do you have to bear ? Do you have any rights at all?
What to do?
(Monday Morning 9:01 a.m.)
The first thing you need to do is take a deep breath. Then call your attorney. And not too deep a breath. You need to call your attorney now. You have rights. You have options. You won’t be ruined by this. But the Rules are particular. You have to know what they are and how they work. The Rules authorizing subpoenas also protect you. But you need to know how to use them. You have no time to dawdle. Call. Your. Attorney. Now.
To be continued . . .