Receiving a subpoena can naturally distress a business owner and take their attention away from productively running their company. If you are a business owner in Kansas City, MO, who has been issued a subpoena, you probably have some questions or concerns. But by taking deliberate and informed steps in response, you can handle the subpoena in the most appropriate way possible while looking out for your interests.
It starts with retaining a knowledgeable law firm. Joseph, Hollander & Craft is here to advise you and your organization on the best way to respond to the information requested. We can answer questions you may have and represent you in legal proceedings as well.
What Is a Subpoena?
A subpoena is a legal demand for someone to appear and testify or to produce documents. They may be issued at the request of a party involved in ongoing litigation or by a grand jury or government agency during an investigation (civil or criminal).
Most subpoenas require their recipients to either:
- Appear in court or at another proceeding (e.g., deposition) and give sworn testimony, or
- Produce admissible evidence, particularly documents, related to an ongoing matter
Your business may receive a subpoena either because it has been named as a party to a lawsuit or because a party to the lawsuit believes your business has valuable information or evidence to produce that is relevant to the matter. In other words, just because you receive a subpoena duces tecum does not mean that you or your company have done anything wrong or are being sued.
However, an administrative subpoena or grand jury subpoena issued to your business may be an indication that you or your business are suspected of wrongdoing.
No matter the circumstances, it’s important not to ignore the request. But that does not necessarily mean you must fully comply with all demands. Depending on the circumstances, you may be able to object to and quash a subpoena, seek a protective order that limits what the party that issued the subpoena can do, or pursue other remedies. Having an attorney assist with this is critical to protecting your rights.
What Happens if I Ignore a Subpoena?
Ignoring the subpoena is arguably the worst thing you can do. Even if you believe that you have nothing to do with the lawsuit or that you do not have any relevant documents or information to produce, you must still address the subpoena.
Failure to do so will bring severe legal repercussions. The judge in the matter may hold you in contempt or impose sanctions. If the subpoena is tied to a criminal investigation, failure to address it may be viewed as obstruction of justice.
Potential Problems that Occur After You Are Served with a Subpoena
One thing to bear in mind about a subpoena is that there could be an issue with it that makes it invalid, unenforceable, or otherwise problematic. Just because you were given a subpoena does not mean the attorney or court that issued it had a right to do so or the information in your possession must be disclosed.
These are some specific problems with the subpoena that your lawyer may identify:
It Is Unreasonably Broad
While it’s common for parties to a civil matter to request voluminous documents from businesses, the request has to be reasonable in scope. For example, asking a company to produce “every document it has ever had possession of in the last five years” is far too broad and presents an undue burden. Some businesses deal with countless records, making it nearly impossible to comply with such an overly broad request.
It Is Vague
A similar problem arises when the subpoena is not exact in its language enough to inform the recipient of what the attorney is looking for. An example might be something along the lines of, “Produce all documents that are related to your employees.” The failure to define “documents” may make the request vague. Which documents? Tax records, disciplinary actions, resumes, or something else? The person issuing the subpoena should be more specific.
It Would Impose an Undue Hardship on Your Business
Some requests are so broad, vague, or otherwise problematic that to comply with them would impose a substantial hardship and financial expense upon the business. The sheer volume of records requested, the difficulty in finding or obtaining them, or the request for data that your business does not ordinarily maintain or have access to, could all be grounds to challenge it.
It Requests Confidential or Protected Information
This is a major problem in certain professions like healthcare or finance. However, any business should be concerned about requests for documents that expose protected, private, or confidential information about their business or their customers. Depending on the nature of your business and the data that is requested, you may not be allowed to disclose it unless certain requirements are met. You should absolutely speak with an attorney if you have concerns about releasing the information requested in the subpoena.
It Requests Privileged Information
You may receive a subpoena that asks for testimony or documents concerning communications with your attorney or work products. In general, this is not permissible. If it appears from the subpoena that the party who issued it is trying to learn about information or records that you and your lawyer have exchanged, you should immediately be suspicious.
It Is Invalid or Unenforceable
There are various ways that a subpoena may not be enforceable. For example, if it was issued outside the jurisdiction, it may not be binding on your business unless additional steps are taken. Other potential problems include if it is not signed, you are being asked to testify too far away, or there was a problem in the way in which the server had the subpoena served upon you.
It Does Not Allow Sufficient Time for an Appropriate Response
A party issuing you a subpoena cannot require you to instantly comply. The law requires certain time periods to be observed. These time periods allow the recipient to either comply with or prepare for the request, or to retain counsel so they can formally object to the subpoena and request court intervention.
What to Do When Your Business Receives a Subpoena Duces Tecum
The steps that you take after receiving a subpoena are important. You will only have a certain amount of time to either comply with the request or make proper objections to it. We advise businesses to do the following:
Read It Over
After receiving the subpoena, you should study it carefully. Look for these details, among others:
- What is the court case that is named in it?
- In which court does the case originate?
- Who issued it to you?
- What is the date?
- Are there any missing signatures?
- What exactly is it asking you to do?
Speak with an Attorney About Responding to a Subpoena
Your next best step, once you ascertain this information, is to speak with an attorney. Your lawyer can review the subpoena and advise you on how best to handle it. You may be able to challenge the subpoena based on the problems identified above or based on other defects or issues with it. These are some possible outcomes:
- Quash: If the subpoena is unreasonable, oppressive, or suffers from some other defect, a judge may quash it. This essentially declares the subpoena invalid and unenforceable.
- Modify the request: If the subpoena request is overly broad or asks for protected or confidential information, your attorney may be able to help modify it. Doing so will make the subpoena more reasonable and fair to you and your business.
- Ask for reasonable expenses: A court may require the party that issued the subpoena to advance reasonable costs to cover the burden of complying. This is particularly applicable in cases involving voluminous record production.
- A protective order: Protective orders are commonly issued when a subpoena asks for something confidential, including trade secrets and other proprietary business information. A protective order can ensure that special information is not disclosed any further than necessary.
Start Preparing in Case You Need to Comply
You should never assume the above outcomes, no matter how strenuously you object or how unfair you think it is. Often, you will have to comply to some extent with the subpoena.
To that end, you should get ready to comply and follow what your attorney advises. Gather any requested documents or prepare to give testimony as directed in the subpoena. If you encounter additional problems along the way, notify your attorney immediately.
Don’t Discuss It
It is not recommended that you discuss the subpoena with anyone, especially the attorney who issued it or the parties to the lawsuit. A lawyer who does not represent you will not give you legal advice on how to respond to the subpoena, and another party in the case will not be able to give you good advice either. Speak with an attorney who can represent you and your business.
Questions About When Small Businesses Receive Subpoenas? We Have Answers
Finding out that you have been subpoenaed is probably the last news you wish to receive. But by acting quickly, you can dispense with the matter in a way that is the least burdensome to you and your business. Are you a Kansas City, MO, company that has received a subpoena? If so, connect with Joseph, Hollander & Craft for further guidance. With offices in Overland Park, Lawrence, Topeka, and Wichita, we help businesses throughout Kansas, too. You can call or complete our online contact form to get started today.
