By Craig Gipson
ECPA members may regularly assess risks and work with attorneys to avoid litigation. But what to do when other parties fighting in court require information from your publishing house? Some ECPA members have already received third-party subpoenas related to the merger or acquisition of other large publishers. And in this age of consolidation, Christian publishers could see more of these in the future.
Under the rules governing federal litigation, parties in a lawsuit have authority to demand relevant information from non-litigants. In other words, a court may require your organization to produce certain documents or other information needed by parties to a lawsuit, even if your organization has no interest in the case.
What To Do If You Receive a Third-Party Subpoena?
First, time and preservation are key. Deadlines to object to certain requests may be as few as 14 days from when you receive the subpoena and the timeframe to produce the information may not be much longer. Contacting your attorney promptly and placing deadlines on a calendar are good places to start. Once you receive a subpoena, you have a duty to preserve all relevant information. Any individuals in your organization who may have information relevant to responding the requests should receive a litigation hold—a notice not to delete any information until the organization determines if it may be needed for compliance.
Next, you may discuss with your attorneys whether the subpoena requests any information that is proprietary to your organization or if it would be unduly burdensome to locate and produce the documents requested. Do the subpoena’s requests involve information that would damage your organization if competitors had access to it? Can your organization comply with the requests easily or will it take multiple individuals a substantial amount of time to locate and organize the needed information?
How To Respond To A Third-Party Subpoena?
There are three main responses when receiving a third-party subpoena: (1) an informal discussion with the issuing attorney; (2) filing of objections with the issuing attorney; and (3) filing a motion with the court hearing the case.
- Often a phone conversation with the attorney who issued the subpoena can help discover the purpose for the requested information and narrow the information relevant to that purpose. Having your attorney discuss with the issuing attorney what you can reasonably produce and what the litigating party really needs may be the simplest way to resolve any differences over compliance. It could save your organization both time and expense in having to produce less that what was originally requested.
- If that is not successful, you may object to individual requests in the subpoena. Common objections to requests include that a particular request seeks documents containing irrelevant information, seeks disclosure of confidential information or trade secrets, or imposes an undue burden or expense on the subpoenaed party. Objections are served on the attorney who originally issued the subpoena, suspending the obligation of the party who received the subpoena, and placing the burden on the litigating party to obtain a motion to compel compliance from the court.
- Publishers can also file with the court a motion to quash or modify a subpoena, or move for a protective order, to narrow what the subpoena requires or narrow who may view your organization’s information. Moving to modify the subpoena’s requirements or only respond with your information under a protective order (e.g. only the parties’ attorneys may view your responses) may help mitigate some of the concerns with compliance.
If your publishing house receives a third-party subpoena and has questions about how to proceed, please contact your local counsel or Flagler Law Group. When multiple ECPA members receive these types of subpoenas related to the same case, ECPA and Flagler Law Group may also provide educational updates like this one to aid members in considering relevant legal issues.
