The Sheriff arrives at reception and your company is served with a Subpoena Duces Tecum (“SDT”). It states that on such and such a date, your Keeper of the Records must appear and produce volumes of emails, documents, and other things all relating to a lawsuit in which your company is not directly involved. You review the request and determine that multiple employees were involved in the transaction. Moreover, the subpoena is overly broad and requests literally thousands of emails and documents that will have to be reviewed and produced. The human and financial capital that your company will need to expend in order to comply is substantial. What do you do?
One of Prince Lobel’s corporate clients recently faced this exact situation and turned to partner Hugh Gorman
for assistance. The first question was “Do we have to comply?” The answer is both yes and no. When a company (or individual) receives a subpoena to produce documents and things, they have 10 days after receipt of a state court subpoena (14 days after receipt of a federal court subpoena), to provide a written objection to the inspection, copying, and production. If the recipient objects to the SDT in a timely fashion, the party who served it is prohibited from obtaining the desired materials without an order of the Court permitting it to do so. It is at this point in the proceedings that counsel are typically able to negotiate to narrow the scope of what must be produced and, if the request is extensive, to obtain appropriate compensation for the costs/efforts needed to comply. In our client’s case, the party that served the SDT was unreasonable and would not agree to narrow its document production requests or to reimburse our client for the cost of assembling, reviewing, and producing the documents. With no agreement in hand, the party filed a motion in the Business Litigation Section of the Suffolk Superior Court, seeking to force our client to comply. Prince Lobel opposed the motion, asking the Court for protection. Prince Lobel argued that the SDT was overbroad and burdensome and that producing the over 200,000 pages of documents requested would take more than 130 man hours and likely cost our client in the $40-$50,000 range. Prince Lobel argued that the Motion to Compel should be denied or, alternatively, that the Court should shift the costs of compliance to the moving party who had served the subpoena. The Superior Court agreed with Prince Lobel and denied the moving party’s motion, stating that: “the cost of compliance would impose undue burden on the non-party as many of the requests are overbroad.” As a result, the SDT was quashed.
The lesson to be learned is that if you or your company receive a subpoena to produce documents, you should obtain competent counsel on the matter immediately to review its scope, and, if applicable, interpose a timely objection. Counsel may be able to resolve the matter through good-faith negotiations. If not, and if the subpoena is truly burdensome, your attorney can seek an appropriate protective or cost-shifting order in court.