A subpoena is a written order to compel an individual to give testimony on a particular subject, often before a court, but sometimes in other proceedings.Failure to comply with such an order to appear may be punishable as contempt.

How to Respond to a Subpoena: 10 Things You Should Do Immediately

1- Preserve. Preserve. Preserve. As soon as you receive a subpoena, it’s important to promptly notify all relevant employees about the requirement to preserve documents, including electronic ones. Issue a document hold memorandum that supersedes the usual document retention policies for materials that could be pertinent. Engaging in the destruction or removal of documents during a government investigation, whether through active measures or by neglecting to halt automated document retention processes, could potentially be interpreted as obstructing justice. At a minimum, this action could give the impression of being uncooperative with the investigation.

2- Establish a dialogue with the appropriate enforcement authorities. Effective communication plays a crucial role in comprehending the investigation’s extent and building a collaborative rapport with the government. It’s advisable to promptly initiate contact in order to deliberate on the subpoena’s scope and formulate a practical timetable for providing the requested materials.

3- Inform the company’s key executives. Receiving a subpoena carries significant weight, and the urgency of informing key executives and possibly the board of directors cannot be understated. This becomes even more crucial if your company is publicly traded, as there could be obligations related to disclosure, given the nature of the subpoena and the potential enforcement actions involved.

4- Determine whether the subpoena was properly served. The proper service of subpoenas isn’t guaranteed, and incorrect service can serve as legitimate reasons to challenge the subpoena’s validity. It’s important to swiftly assess the foundation on which the subpoena was issued and delivered, in order to decide whether to raise objections or pursue alternative courses of action.

5- Advise employees of their rights and responsibilities, including access to counsel.
Upon the initial service of the subpoena or during subsequent interactions, government agents might seek to conduct interviews with employees. It is crucial to promptly reinforce to employees their obligation to provide accurate information when conversing with government agents. Additionally, employees should be made aware of their option to have legal representation present during interviews, if they opt for that route. It’s equally important to restate your company’s stance on cooperating with investigations and to request that employees promptly notify the legal department about any dialogues or engagements with government representatives.

6- Evaluate your insurance policy’s notice requirements. In numerous insurance policies, a subpoena serves as an event that activates coverage. Providing early notification to your policy holder significantly enhances the likelihood of insurance coverage for a portion or the entirety of investigation and/or litigation expenses.

7- Identify key company individuals. Pinpointing the essential individuals within the company for the subpoena response assists in establishing and potentially restricting the overall range of documents that need to be furnished. Aiming to refine or customize the extent of the subpoena’s reach constitutes a vital initial phase in the response procedure.

8- Narrow file search parameters. Once the pivotal individuals are recognized, you can proceed to pinpoint the electronic and paper records that need to be gathered and examined. Meeting the government’s requisites while refraining from producing extraneous or legally protected documents necessitates the implementation of a meticulously crafted search protocol.

9- Protect and defend privileged materials. Safeguarding and upholding the confidentiality of privileged materials stands as a fundamental duty of corporate legal counsel. Documents that fall under the purview of privileges or safeguards should be segregated, documented, and maintained. While there are remedies accessible for unintentionally disclosing privileged materials, it’s desirable to avoid the situation of having to reclaim a document due to its privileged status.

10- Construct a formal, defensible review process. Developing a well-structured review procedure, defensible in a legal setting, is imperative, particularly when addressing e-discovery matters. Engaging external legal counsel to assess your response protocol in its early stages is recommended to guarantee the comprehensive identification and search of all conceivable electronic data sources.