When you receive a subpoena requesting the production of documents, are you obligated to do exactly what the subpoena says and produce every document requested? No, not necessarily.
Subpoenas are often drafted in overly broad terms requesting “any and all” documents related to a particular issue. Depending on the subject of the subpoena and the type of records requested, subpoenas with extremely broad document requests could call for thousands or hundreds of thousands of documents.
You also may experience difficulty compiling the requested records. For example, what if the subpoena calls for every communication you (or your company) had with any person or entity on a given topic? What if you do not have the capability to search for these communications and would need to hire a third-party vendor to perform this search? What if the subpoena is directed to a now-dissolved corporate entity that has its corporate records stored in paper form in a warehouse in another state? Are you required to engage the third-party vendor to search your communications? Are you required to send someone to make copies of the documents in the warehouse?
The answer depends on the facts and circumstances of the given case. Under the Federal Rules of Civil Procedure and the Alabama Rules of Civil Procedure, the “party or attorney responsible for issuing and serving a subpoena must take reasonable steps to avoid imposing undue burden or expense on a person subject to the subpoena.” See Federal Rule of Civil Procedure 45(d)(1); see also Alabama Rule of Civil Procedure 45(c)(1). If the party or attorney issuing the subpoena fails to take reasonable steps to avoid imposing an undue burden on a subpoena recipient, he or she can be subject to sanctions, such as monetary fines.
What is “undue burden?” Undue burden generally means excessive and unwarranted difficulty and expense. Whether the burden is “undue” depends on the facts and circumstances of the situation. Assessing this burden will involve a consideration of a number of relevant factors including but not limited to: the number of documents that would potentially be responsive to the subpoena; the method in which the responsive documents are stored; the time and expense that would be incurred in gathering such documents; the likely benefit the parties will obtain from the requested documents; and the parties’ ability to obtain the same or substantially similar documents from another, less costly source.
What is proportionality? Both the Federal Rules and the Alabama Rules of Civil Procedure also have a proportionality requirement that limits the scope of discovery to documents that are proportional to the needs of the case, considering items such as the issues at stake in the litigation, the amount in controversy, the importance of the discovery in resolving the issues, and whether the burden or expense of the proposed discovery outweighs its likely benefit. See Federal Rule of Civil Procedure 26(b)(1); Alabama Rule of Civil Procedure 26(b)(1)(ii). If you are requested to produce a very large number of documents that would likely have very little value to the case, then the requests in the subpoena may not be proportional.
What can I do? If you receive a subpoena that you believe is overly broad, unduly burdensome, or disproportionate, you have a number of options. A skilled attorney can help you navigate these options and contact the attorney who issued the subpoena to attempt to negotiate and narrow the scope of the subpoena requests. An attorney can also assist you with drafting and timely serving objections to any overly broad, unduly burdensome, or disproportionate requests.
Can I request compensation for my expenses? Yes, you can receive compensation for the reasonable expenses you incur in responding to a subpoena. Typically, these costs are minimal and involve only the costs of copying or the cost of a thumb drive. However, in cases of overly broad subpoenas, if the requesting party insists upon obtaining an extremely broad set of documents, you can potentially condition your response on the payment of your expenses. For example, in the situation where you would need to hire a third-party vendor to search your email communications, you could ask the requesting party to pay the costs of the vendor. Seeking such compensation will be a matter of negotiation and will be much easier if you have a lawyer to assist you with this process.
What if my documents are privileged? An overly broad subpoena could request documents covered by a number of privileges, including the attorney-client privilege, the spousal privilege, or the journalist shield privilege, among others. You are not required to produce privileged documents, so long as you make appropriate and timely objections to any requests for such information. If you receive a subpoena that you think may request privileged documents, the assistance of an attorney may be useful to you. An attorney can review your records to determine if the privilege applies, as well as make appropriate and timely objections to the production of privileged documents and create a log of those documents, if necessary.
What is a motion to quash? A motion to quash is a request to have the court declare the subpoena invalid. If you believe the subpoena you have received is completely inappropriate and you should not have to produce any documents in response to it, or if an attorney is unable to negotiate a resolution for you, it may be necessary for an attorney to file a motion to quash. If a court grants your motion to quash, the subpoena will become invalid, and you would no longer have any obligation to respond to it.
What is a protective order? A protective order is an order from the court that prohibits certain discovery from taking place. If a subpoena is overly broad, unduly burdensome, disproportionate, or interposed from some improper purpose, an attorney may find it necessary to seek the entry of a protective order on your behalf. A protective order from the court can either prevent discovery on a given topic from taking place entirely, or it can set specific terms on which discovery will occur, both to limit the scope of the discovery and to reduce the burden that you will incur.
Which of these options is appropriate for you? The answer depends on the facts and circumstances of your case. An experienced attorney can evaluate your situation and assist you with deciding which option is right for you. Subpoenas often have quick response deadlines, so if you believe that you could benefit from assistance in responding to an overly broad subpoena, please contact an attorney as soon as possible.