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You Just Got Served with a Subpoena… Now What?

—Danielle S. McKinley

Your company just received a subpoena demanding that you produce certain documents, however your company is not even a party to the lawsuit.  What next? Do you have to respond? Are there consequences if you do not respond?  As common as subpoenas are to attorneys, they can be foreign to many businesses or individuals.  There are many issues that you must consider and this article is designed to help you navigate the terrain.

A subpoena commands the recipient to provide information either in-person by testifying or by producing items such as documents.  Section 2-1101 of the Code of Civil Procedure authorizes any attorney in Illinois, in addition to the court’s clerk, to issue subpoenas in a pending action.  735 ILCS  § 512-1101.  Litigators may use a “third-party subpoena” for documents (or “subpoena duces tecum”) to collect documents they believe to be relevant to their pending lawsuit.  Therefore, your company can be served even when it’s not involved in the lawsuit.

Once served with a subpoena, many companies are unsure of whether they should respond. Subpoenas are issued for a variety of reasons and we recommend that you consult with an attorney before responding.  This article, however, contains preliminary information to assist you in better understanding just what a third-party subpoena for documents is and issues you should be aware of when responding.  Rules for subpoenas vary from state to state and this article only addresses subpoenas issued in Illinois.

There are four basic types of subpoenas: Subpoena for Documents, Subpoena for Deposition, Trial or Hearing Subpoenas and Grand Jury Subpoenas.  The most common misunderstanding when most companies receive a subpoena is that their attendance is required somewhere.  In a majority of instances, the subpoena received by a company is a Subpoena for Documents.  In Illinois, the subpoena for documents will usually state “THIS IS FOR RECORDS ONLY.”  Most of our clients tend to breathe a sigh of relief when they realize their attendance is not required for this type of subpoena as long as the documents are produced prior to the deadline identified in the subpoena.  According to Illinois Supreme Court Rule 204, in lieu of your appearance, the party who issued the subpoena can state that no deposition will be taken if the deponent produces the requested documents prior to the deadline identified in the subpoena.  Ill. S. Ct. Rule 204(a)(4).  Although your appearance may not be required, responding to a subpoena is important because the failure to do so can result in a variety of penalties, including being held in contempt, monetary fines, legal fees and in some instances a judgment.  As long as you have produced the documents (whether by mail, email, facsimile, or another agreed upon method) prior to the deadline listed on the subpoena, you will have satisfied your obligations.

In Illinois, the party issuing the subpoena must “describe with reasonable particularity matters on which examination is requested.”  Ill. S. Ct. Rule 206(a)(1). Further, the subpoena must be directed to someone at your business who is in charge of the documents, books or records requested.  Upon receipt of the subpoena, it is helpful to look into the underlying claim and confirm there is an actual proceeding in order to determine whether it is in fact a lawful subpoena.  In addition to confirming the subpoena is lawful, understanding the underlying claim will assist you in identifying the type of documents being requested and determining whether to object to the request or assert certain privileges.  Issuing a “litigation hold” at the time of receipt can also be crucial, because it will give notice to your employees that they must preserve any documents or information that may be responsive to the subpoena.  A litigation hold is a process that an organization uses to preserve all forms of relevant information when litigation is reasonably anticipated in order to avoid ruining or destroying documents you may be required to produce.  You should consider consulting with an attorney at this time because they will be able to assist your company in implementing the litigation hold, determining what objections to the subpoena are proper (if any) and identify which documents should be produced and which may be privileged or confidential.  An attorney can also help evaluate whether your company may be subject to any legal exposure because of the subpoena.

When responding to a subpoena, you are only required to produce documents in your control or possession.  It is not necessary for you to go on a fishing expedition for documents requested in a subpoena.  Examples of documents that may be requested are:

  • Employee payroll records;
  • Medical records;
  • Computer files and downloaded material; and
  • Photographs, graphs, & charts.

Even if you are not in possession of any (or some of) the requested documents, you or your attorney should still contact the attorney who issued the subpoena and provide them with a proper written notification.  If you fail to respond to a subpoena there can be serious ramifications.

Subpoenas, however, have their limits and they cannot be overly burdensome.  For instance, if you are not a party to the underlying lawsuit, a request to produce a voluminous amount of documents may be considered overly burdensome.  You have the right to object to a subpoena but your objection should be in writing prior to the deadline.  If you fail to object, you waive that right.  You should consult with your attorney to determine whether you have grounds for an objection.  There may also be grounds to “quash” the subpoena (which would render the subpoena void).  The Illinois Code of Civil Procedure provides that “for good cause shown, the court on motion may quash or modify any subpoena or, in the case of a subpoena duces tecum, condition the denial of the motion upon payment in advance by the person in whose behalf the subpoena is issued of the reasonable expense of producing any item therein specified…” 735 ILCS 5/2-1101.  If your Motion to Quash is granted, then the subpoena is void.  However, the Court may instead choose to modify the subpoena, or require the person who issued the subpoena to pay reasonable fees before you are required to produce the responsive documents.  A Motion to Quash is usually the only way to avoid responding to a subpoena and may be granted, for example, if the subpoena does not allow for a reasonable amount of time to respond, or the subpoena is considered unduly burdensome.

Another common question that tends to arise upon receipt of a subpoena is whether you are required to take on the expense of producing the requested documents.  Who covers the expense for subpoena production varies from court to court.  In Federal Court, when a third party is ordered to produce documents pursuant to a subpoena, the presumption is that the responding party must bear the expense of complying with the request.  DeGeer v. Gillis, 755 F.Supp.2d 909,928 (N.D. Ill. 2010).  However, pursuant to Rule 45, the issuing party “must take reasonable steps to avoid imposing undue burden or expense” on the party subject to the subpoena.  Fed.R.Civ.P.45(d)(1).  Cost shifting may also occur in Federal Court when a subpoena subjects a non-party to a “significant expense.”  DeGeer v. Gillis, 755 F. Supp. 2d at 928. On the other hand, if the subpoena is issued in state court (i.e. Circuit Court of Cook County), costs may be shifted to the requesting party.  Pursuant to Illinois Supreme Court Rule 204(a)(4), unless otherwise ordered or agreed, reasonable charges incurred by the recipient  shall be paid by the party requesting the documents.

While subpoenas are a common tool in the litigation process, there are several issues that your company may not be familiar with or comfortable dealing with on its own.  An experienced attorney will be able to assist you in responding to a subpoena and provide you with a better understanding of the process and preparing your response.

The information in this article is for informational purposes only and does not constitute formal, legal advice.  If you have received a subpoena or have questions regarding the information contained in this article, please consult with Danielle S. McKinley or any attorney at Roberts McGivney Zagotta LLC for advice about your particular circumstance.