Responding to third-party subpoenas.
Association meeting minutes and other association documents can provide a wealth of information for litigation attorneys fishing for evidence of commonly accepted practices and standards in an industry or profession, health and safety effects of products or services, or anticompetitive behavior. It is thus not surprising that associations often are served with subpoenas to provide documents or testimony in lawsuits in which the associations are not named parties. Given the high stakes involved, it is crucial that association executives understand their associations' rights and responsibilities when responding to these third-party subpoenas. In this column, Rob Portman explains the alternatives for associations in responding to these subpoenas.
- Jerald A. Jacobs, ASAE General Counsel
Your association is served with a subpoena. How do you respond? Must you comply? Actually, you have some options, and being prepared - with a working knowledge of subpoenas and an understanding of your alternatives for action - is pretty important, given the frequency with which associations are served with third-party subpoenas.
A subpoena is a formal legal request for the production of documents or for attendance at a trial or hearing. Not all subpoenas are equal in the eyes of the law. As a general matter, subpoenas are issued in conjunction with federal or state court actions or by administrative or criminal enforcement agencies. Subpoenas issued by state courts or enforcement agencies in one state are not enforceable against individuals or entities that reside in other states and are not parties to the litigation in question. This is because the courts or agencies in the state in which a lawsuit is brought (known as the "forum state") generally lack jurisdiction over residents of other states who are not parties to an action in the forum state.
By contrast, a federal subpoena has the force of law no matter where the case is pending, as long as the subpoena is issued pursuant to proper procedures. If a federal subpoena commands the production of association records, the subpoena must be issued by a federal court for the district in which the production is to be made. (A subpoena for records is called a subpoena duces tecum.) If the subpoena requires attendance at a deposition, the subpoena must be issued in the district in which the deposition is to take place. Under the federal rules, a person who is not a party to the litigation or an officer of a party cannot be required to travel more than 100 miles from his or her home, place of employment, or place of business for a hearing, deposition, or document production.
Options for responding
To be valid, a subpoena must also comply with other procedures that vary from jurisdiction to jurisdiction. Generally speaking, though, the subpoena should identify the judicial or administrative body before which the proceeding is pending; the names of all plaintiffs and defendants (if a court case); the case number or other identifying information; the date, time, and place for appearance or production of documents; the list of documents sought; the name and telephone number of the attorney issuing the subpoena; the signature and seal of the court or agency issuing the subpoena; and the proper witness and mileage fees.
A valid subpoena requires a timely response, but compliance is not the only option. Whether the subpoena is issued under federal or state rules, a person or entity served with a subpoena may make a motion to quash (invalidate) the subpoena or move for a protective order. Such an order may be issued if the subpoena fails to allow a reasonable time for compliance, requires disclosure of privileged or other protected matter, subjects a person to undue burden, or requires a nonparty to travel more than 100 miles from the person's residence, place of employment, or place of business. A subpoena may also be quashed if it seeks information that (a) is irrelevant to the subject matter of the litigation, (b) seeks expert testimony, or (c) is readily available from other sources to the party issuing the subpoena. In addition, some states provide special rules against disclosure of information about a patient's HIV status or mental health.
So what should an association do when it receives a subpoena?
First, read the subpoena carefully. Is the association being asked to produce documents or attend a deposition? Is it being asked to produce confidential records or readily available industry information? Who is asking for the information? By what date is the association required to respond? Is it a state or federal case? If it's a state case, is it a state in which the association is headquartered? If not, after checking with the association's attorney, the association may be able to write the issuing attorney and inform him or her that the subpoena is not valid and the association does not intend to comply.
Second, check state laws and local court procedures. Even if the subpoena has been validly issued, the association may still want to object on grounds of undue burden or inconvenience, lack of relevancy, or improper attempt to seek expert testimony.
Third, if the decision is to comply with the subpoena, provide only the records requested. Produce the records just as they are kept in the usual course of business or organize or label them to correspond to the requests in the subpoena. You do not need to supply originals; copies are fine. Also keep for the association's records an exact copy of what the association produces.
Finally, whatever the association does, it must not ignore the subpoena. Both federal and state laws provide for sanctions for failure to comply with a validly issued subpoena, including fines and contempt of court. The last thing an association wants to do is pay a hefty fine because it didn't get around to responding to a subpoena.
Robert M. Portman and Jerald A. Jacobs are partners at Jenner & Block, Washington, D.C. Jacobs edits this column.
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|Author:||Jacobs, Jerald A.|
|Date:||Mar 1, 1998|
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