Responding to a subpoena for documents is not too different from responding to a request for production when you are party to litigation. Yet, despite this similarity, subpoena response often does not get the attention it deserves. And not taking subpoena response seriously can have significant consequences—not only resulting in contempt holdings for noncompliance, but potential spoliation sanctions should evidence be destroyed, as well as cost overruns and the accidental release of confidential or privileged information when processes aren’t followed efficiently.
If you’re familiar with the eDiscovery process, you should be familiar with the process for responding to document subpoenas. The first step begins with notifying members of the served party’s organization, such as general counsel and the in-house legal department, corporate officers when necessary, and outside counsel if they will be involved in the response process. From there, you will want to identify likely custodians of potentially relevant data, issue a litigation hold, collect and review your data, and ultimately produce that information to the issuing party, if required.
The subpoena response process:
- Notify relevant parties
- Issue a legal hold for potentially responsive ESI
- Challenge the subpoena if you choose to do so
- Collect ESI for review
- Review ESI for privilege, confidentiality, and responsiveness
- Produce ESI to the issuing party
Issuing a Litigation Hold for Subpoena Response
You’ll also want to issue a legal hold or litigation hold quickly. The destruction of electronically stored information after a preservation obligation has been triggered can result in sanctions for spoliation, or the destruction of evidence. (Courts are divided on when a preservation obligation arises for third parties, some holding that the duty arises when a preservation letter or subpoena is received, with others saying it begins once litigation is reasonably anticipated—which can be long before a subpoena arrives.)
If you plan on challenging a third-party subpoena, you will still need to institute a defensible hold should your challenge be unsuccessful.
Your litigation hold process should begin by identifying all individuals or employees who control ESI that is potentially responsive to the subpoena request. A formal, written hold notice should be issued to all those custodians, instructing them to preserve potentially responsive documents, whether emails, office files, or even Slack messages. Actively monitor your legal hold as it continues, to make sure that individuals are complying with their preservation responsibilities.
As part of your legal hold, you will also want to pause any automated data disposition processes. If, for example, your company email automatically deletes emails after six months, that process should be stopped for individuals under legal hold.
Document Review in Subpoena Response
From there, you can begin collecting and reviewing your data. Once collected, you can upload data to a document discovery platform, such as Logikcull, where it can be searched, tagged, redacted, and eventually produced to the issuing party. At a minimum, you’ll want to review documents for privilege, confidentiality, and responsiveness.
This review is often the most resource-intensive part of the subpoena response process, but employing effective document review strategies can help significantly reduce the time and cost associated with subpoena response. Deduplication, Culling Intelligence, smart filters, and automatic privilege protection, for example, can often halve the number of documents requiring eyes-on review from the outset.
From there, smart search terms can help you narrow down your review even further. As with the discovery process, your search and review should be iterative—that is, you will continue to refine your process as you go through. For example, a search term that pulls up a significant number of nonresponsive documents can be refined to a more targeted search. Bulk keyword searching is one way to get a quick overview of your keyword strategy, and narrow it or expand it as necessary.
When this narrowing process is handled in-house, by corporate legal teams, the result can be a dramatic reduction of data requiring review by outside counsel—as much as 98 percent in many cases. For law firms performing this process for their clients, intelligent culling can result in significant cost and time savings to the client, as well as greater recovery of eDiscovery costs.
Producing Documents in Response to a Subpoena
When you’ve completed your document review, how do you produce the information to the issuing party? Under the Federal Rules of Civil Procedure, if a document subpoena does not specify the form of production, a responding third party may produce the materials in the form in which they are ordinarily maintained or in any reasonably usable form. Otherwise, the federal rules allow a party to specify the format in which the ESI should be produced. If that format is unreasonably burdensome or expensive, you may object to the request on such grounds. Negotiations with the issuing party can also result in a mutual agreement on the form of production, as with an ESI agreement in litigation.
It is not uncommon for documents to be produced on physical media, such as DVDs, thumb drives, or even paper, and shipped to the issuing party. However, such production methods can be quite risky and put the security of your data in jeopardy. Many seasoned litigators, for example, have a tale or two of a production that was lost in transit—though few will speak publicly of it.
A more secure method of production is to preserve data in an encrypted environment and share your production via a safe, password-protected link, such as with Logikcull’s ShareSafe feature. In addition to increased safety and data security, this method also allows you to set time-based access permissions, revoke access if necessary, and see a built-in audit trail of when your production was received.