Civilized Proceedings, Litigation of Business | Business of Litigation

Subpoena Blues . . . Continued

Just the facts please . . .061114_0714_MondayMorni1.png

So, did you called your attorney? No, not yet? But you will? Okay. I guess, I’ll answer a few questions for you first. But only about what your attorney will need from you when you call? You need to speak to your own attorney and not just read this on some stupid blog written by someone you never met and do not even know is a real attorney. I’ll be using a lot of usuallys, generallys and ordinarilys and not many specificallys, totallys or exclusivelys.

Continuing with my last post, most attorneys will usually want details about the Subpoena when you call. When were you served? How were you served? Who is it from? What are you asked to produce? Did you know this case is going on? Do you know these people? Do you know anything about this? What court has this case? Why do they want your records? How are your records related? What did you do here? Are you sure?

MH900309662. . . and the documents too.

Ordinarily, an attorney will want to see a copy of the actual Subpoena itself along with any documents that came with it or were attached to it. There are a number of technical requirements that the Subpoena needs to comply with on it’s face, that must be included with it and how it must be delivered for it to be valid and enforceable. Plus, your attorney will want to know who served it, the parties’ names as listed in the caption and who their attorneys are, where and how the production is taking place, if it is in federal or state court, the specific language used to describe what you are supposed to produce and other things. Since most of this information comes on or with the Subpoena, I always want to see a all of it as soon as possible.

Under What Authority?

Rule 45 of the Federal and Minnesota Rules of Civil Procedure govern Subpoenas in civil lawsuits. Minn.R.Civ.P. 45.01 (2014); Fed.R.Civ.P. 45 (2014). Although already alike, after Minnesota amended its state court version of Rule 45 in 2006 the state rule is now almost a mirror image of the Federal version of Rule 45. They are similar enough to make some general observations that usually are applicable to both Rules.

Subpoena Powerflat-27287_150

The generalities begin with an attorney being an officer of the court in both forums. As such, an attorney has ‚ÄúSubpoena power‚ÄĚ and usually does not need any separate authorization by a judge to use and serve a Subpoena. This power is used to compel people and businesses to provide information needed and related to a lawsuit, whether it is testimony, documentary or in some other tangible form. If you fail or refuse to comply with any type of Subpoena, a court can find you in contempt of court and impose typical contempt sanctions (fines and time in jail to obtain your compliance).

Subpoena Duces Tecum

The type of Subpoena in the post below is formally called a Subpoena Duces Tecum (meaning bring it with you or be penalized in Latin). It requires you to provide documents or other physical items, including electronic data created by and stored on a computer’s hard drive or in its memory.

In Minnesota, a Subpoena Duces Tecum usually does not involve providing testimony, but it can. You have to be certain so it is best not to rely on any ambiguous cover letters that were served with it. You need to read and comply with the actual wording in the Subpoena itself.

book-1911_150 Particulars

Based on the circumstances described in my previous post, a number of things happened with this Subpoena that should be considered.

1.      Properly Served?

The first question that always should be asked is if service of the Subpoena was proper. A Subpoena under Rule 45 has to be personally served to be effective. To be proper, there are service specifics as to who may serve the Subpoena, where and when it may be served, who it has to be served on and how it is to be served, among other requirements. Make sure your attorney knows how you got the Subpoena.

2.      Right Person?staple-160414_150

This Subpoena requires records be produced that belong to the company. As long as your business is a corporation or LLC, the Subpoena should not name a specific person and will usually name the ‚ÄúRecords Custodian/Custodian of Records.‚ÄĚ This usually means whoever has access to the business‚Äôs records, is responsible for maintaining them and can certify to the court (and everyone else) the records produced are what was asked for and have not been improperly altered.

3.      Witness Fees?

The attorney that served the Subpoena has to include a witness fee of $20.00 per day in Minnesota state court cases and $40.00 for federal cases. If this is not included with the Subpoena when served, the Subpoena may be considered invalid. Besides the generous per diem witness fee, the party serving the Subpoena is required to reimburse you for round trip mileage (28 cents and 55.5 cents respectively in state and federal cases) to the scheduled event (trial or deposition) from your home or workplace.

4.      Compensation?packs-163497_150

If you are not a voluntary participant in the case (or employed by one) and it involves your business or profession, you are to be compensated for your time complying with a Subpoena Duces Tecum. If the Subpoena fails to address compensation your attorney can object or bring a motion, depending on the circumstances, burden and costs involved. Arrangements to reasonably compensate you for the time required to comply with it should be addressed before compliance. However, being required to respond to a single Subpoena Duces Tecum personally and incurring nominal expenses is not presumed to be compensable under the Rule. It’s like serving as a juror to a degree: a civic duty. Protecting people who have nothing to do with the case from unreasonable burdens is preferred but not required.

5.      Timing?clock-70182_640

Rule 45 requires reasonable notice. But the rule does not set a specific time limit. Typically, ten days is enough, but why is reasonable may be shorter or longer depending on the circumstances of the case. A potential trap for the unwary is that a non-party has up to 14 days to object to the Subpoena. Because any objections must be asserted before the time set for compliance under the Subpoena, you cannot hope to take advantage of the full 14 days if the Subpoena requires a shorter time to comply. It is a good idea to assert any objections as soon as they can be determined and not wait until the last minute, or worse, think you have 14 days as stated in the Rule if the testimony or documents requested are due sooner.

6.      Reasons to Object or Quash?reading-297450_150

Subpoenas Duces Tecum may be opposed on grounds of privilege, undue burden, relevance, reasonableness, oppression and for other good cause. But keep in mind the court alone makes the final determination as to what constitutes any of these factors and what weight each one is to be given. Just like beauty is in the eye of the beholder, one person’s relevance may be extraneous to another. As a result, you should always proceed with an abundance of caution and try to comply (and document your efforts). After all, when contempt penalties are possible it is always better to be safe rather than sorry.

Conclusion

red-31172_150Although Rule 45 does provide some protections to non-parties, few are required and strict compliance will always be expected. The best way to deal with the unfortunate burden of being served with a Subpoena Duces Tecum is to act promptly and thoroughly with the guidance of an attorney. After all, there may come a day when you need to obtain information for a lawsuit and serving a Subpoena Duces Tecum on an unrelated third party may be the only way to obtain it.

Now will you call your attorney?

Next up: Conclusion: The Confidentiality Issues . . .

MKT

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Civilized Proceedings, Discovered on Demand, Litigation of Business | Business of Litigation

Monday Morning Subpoena Blues

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.061314_1453_MondayMorni1.png 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.

Duces Tecum

(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 ‚Äď 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?

Duke’s Dilemma

image

(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‚ÄĒnot 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.

Records Recalled

(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.061114_0714_MondayMorni2.png 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!¬†

Confidences Collide

(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 ofTop_Secret_glossy 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?

Publicly Proprietary

(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.

Disrupted

(Monday Morning 8:37 a.m.)image

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.)

cautinAs 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‚ÄĒInstructions 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. 

serverIT begins

(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 ‚Ķ Tech ‚Ķ Something ‚ĶTeam? 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?

got-a-question-1398184097TUB

(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?¬†Phone-keypad183

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 . . .

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