So, you’ve received a third-party subpoena. Now what? A third-party subpoena is the procedural mechanism that allows parties in litigation to obtain evidence from non-party individuals and/or entities. For federal cases, Federal Rule of Civil Procedure 45 governs this process. Rule 45 outlines specific procedures that litigants must follow to serve a subpoena seeking documents and/or testimony properly. The Rule also provides protections non-parties can use to alleviate their burden in producing responsive documents. Most states have their own rules that govern non-party discovery that often, but not always, mirror Rule 45.

The process to respond to a third-party subpoena often involves several steps and could require consultation with outside counsel. But keeping these five important considerations in mind can make the response process less daunting:

1. Confirming Proper Service and Jurisdiction: One of the first steps should be to ensure that the subpoena has been served properly and that the court issuing the subpoena has jurisdiction over the matter. This means checking that the subpoena was delivered to the correct person and in the correct manner, and that the court has the authority to request the information. If the subpoena was not served properly or if the court lacks jurisdiction, you may be able to challenge the subpoena. This can be particularly important if the subpoena is issued by a state court.  Depending on the specific state laws and where your company is principally located and/or where the custodians of the records at issue are located, the issuing party may be forced to domesticate the subpoena in another jurisdiction.
2. Requirements for Legal Holds: When you receive a subpoena, you should consider whether a legal hold is appropriate to ensure retention of relevant documents. It is important to consider the legal standard in your jurisdiction, but as a general principle, legal holds are only required if you reasonably anticipate litigation (and anticipating litigation can trigger additional obligations, so this decision should be made after carefully considering all relevant factors and, if necessary, consulting with counsel). If you determine that a hold should be issued, it is important to identify any information that may be relevant to the subpoena and ensure that the information is not deleted or altered in any way. It is also important to ensure the legal hold is delivered to the appropriate personnel. Failure to preserve relevant information can result in sanctions or other penalties. 
3. Timing and Assertion of Objections: Make sure you are aware of the deadline for asserting any objections in a timely manner. In federal court, the objection deadline is either 14 days after service of the subpoena or the date of compliance, whichever is earlier. Issuing parties are often amenable to an extension, and you will want to make sure your extension request explicitly asks for additional time to provide written responses. In addition to the timing of objections, you will also need to review the subpoena carefully and determining if there are any grounds for objecting to it, such as privilege or relevance. If there are, these objections should be raised promptly, as failure to do so may result in waiving your right to object. 
4. Protection of Confidential Information or PHI: It is important to take steps to protect any confidential information or protected health information (PHI) that may be the subject of requests in the subpoena or otherwise responsive to the subpoena. This means reviewing the information requested and determining if any of it is confidential or protected. If it is, you will need to take steps to ensure that the protected information is not disclosed. If any PHI is required to be disclosed, it is imperative to only disclose the absolute minimum necessary information in order to respond to the request and to seek qualified protective orders from the court. If you are a HIPAA-covered plan or provider, you must also make efforts to notify any individuals whose PHI may be disclosed to offer them an opportunity to object to the disclosure. It may also be prudent to negotiate a confidentiality agreement with the requesting party. If there is already a protective order in place, you should review it carefully to ensure that it protects documents produced by non-parties and contains sufficient protections to cover the documents you anticipate producing in response to the subpoena.
5. Evaluate Relationship to Litigation: A big part of responding to a third-party subpoena is analyzing your relationship to the parties in the case and the subject matter of the litigation. It is helpful to review the complaint and key pleadings or motions on the docket to best understand the claims and defenses at issue. You should also consider how your entity is involved in the matter and the business relationships that might be impacted by the litigation and the subpoena.

By keeping these five things in mind and taking the necessary and prudent steps, you can respond effectively to a third-party subpoena and protect your interests.

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