How to Protect Your Business When Responding to a Non-party Subpoena

Individuals or businesses that are not named in a lawsuit (“nonparties”) may be served with a subpoena requesting documents and/or information related to the lawsuit. Although burdensome, nonparties are required to comply with these subpoenas. Fortunately, nonparties are granted certain rights which can protect them from being harassed and unduly burdened by a party to a lawsuit.  In addition, there are ways to try to protect the confidential and proprietary business information of a non-party, and to mitigate the costs involved with responding to a subpoena.

Limiting Scope

Because non-parties are not entangled in the litigation they’ve been subpoenaed for, they are often granted more protections than a party that is directly involved. Specifically, courts have held that nonparties must be given sufficient notice of the subject matter of the action in which they are being asked to provide information. In addition, most courts hold that the information sought must be material and necessary to the lawsuit. If a subpoena is overly broad, unduly burdensome or harassing, a non-party may seek to limit the scope of the subpoena by moving to quash it in whole and/or asking the court for a protective order.  A request that the court issue a protective order can also be made if there is a concern that any disclosure by the non-party would jeopardize its confidential or proprietary business information. The timing and form of an objection to a subpoena may be different depending on which court the subpoena is issued from. Counsel should be sought to assist in preparing a strategy on how and when to respond. 

Fee-Shifting

As previously mentioned, parties involved in the litigation have an obligation to avoid undue expense on nonparties. Because of this, in certain instances nonparties may be able to recover the costs involved with responding to the subpoena from the requesting party. This may include the costs of attorneys’ fees and for services used to procure the information requested. Negotiating for fee-shifting may also assist in narrowing the scope of the subpoena, by incentivizing the requesting party to limit its request to only essential information in order to keep the procurement process cost down.

Work With Qualified Counsel

Nonparties should consider contacting legal counsel as soon as possible after receiving a subpoena. For more information, and assistance in dealing with non-party subpoenas, contact Canales PLLC today to schedule your consultation.

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Canales PLLC

As a minority-owned law firm with experience across a broad range of industries and subject matters, Canales PLLC understands the importance of creating diverse, client-centered solutions that cater to each client’s particular needs.

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