Daily Business Review 

Parties in lawsuits frequently attempt to obtain documents or testimony from nonparty individuals or companies (also known as third parties) by serving them with a subpoena. When a third party receives a subpoena, it oftentimes is uncertain as to both its rights and responsibilities under the subpoena. As a result, the person or entity receiving the subpoena can miss critical deadlines and lose important protections. By having a process in place to handle a subpoena once received, a third party can avoid this.

When a third party is served with a subpoena, the first step should be to provide the subpoena to an attorney, which is normally in-house counsel. If the subpoena’s recipient is an individual or entity without a legal department, then consideration should be given to retain an attorney. This is important because the attorney will help with understanding the subpoena, gathering documents in response to the subpoena, preparing a witness who is being asked to testify under the subpoena, and evaluating whether the third party has any legal exposure as a result of compliance (or noncompliance) with the subpoena.

If the subpoena is directed to a business and calls for the production of documents, the business should also issue a “legal hold” to advise its employees that they must preserve any documents covered by the subpoena. Similarly, even if documents belonging to the third party are in the possession of someone else, those documents may nevertheless be considered to be in the “possession, custody or control” of the third party and could be responsive to the subpoena. As such, other parties, like accountants, consultants or outside attorneys, should also be given notice of the subpoena if they could possess documents that might be responsive.

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