Served With a Third-Party Subpoena? How a Botched, DIY Response Can Turn Annoyance Into Liability

By Martin S. Frenkel, Rachael A. Frawley-Panyard, and Corinne S. Rockoff

Maddin Hauser’s Subpoena Response Program Minimizes Cost, Risk, and Demand on Internal Resources

Whether in a civil lawsuit, government investigation, or another legal proceeding, relevant information and documents are often in the possession of parties with no direct involvement in the matter. That is why businesses large and small frequently receive subpoenas from attorneys or regulators in cases that may have only the most tangential relationship to the company – an executive’s nasty divorce, an employee’s bankruptcy, a regulator’s investigation of a client or business partner, to name a few. 

No business wants to be on the receiving end of a third-party subpoena. Responding –scouring databases, searching through and producing countless documents, making key personnel available for depositions and testimony – can be disruptive and divert valuable time, resources, and money from more urgent and productive endeavors. 

But businesses that receive subpoenas can’t simply disregard them or treat them as petty annoyances. They require thoughtful and considered responses, whether that consists of a challenge to the subpoena’s validity and scope or careful compliance with their requests. And while failing to comply with a subpoena can come with significant consequences, so too can responding to one without the assistance and guidance of counsel. A botched or scattershot response could lead to unnecessary legal expenses – such as retention of local counsel, fighting motions to compel, and negotiating protective orders – and could also put the company in legal peril by encouraging the requesting party to dig deeper into the company’s connection to a given matter. 

This is especially the case for financial institutions when the request involves statutorily protected personal and non-public information of employees or borrowers, or proprietary and confidential information touching upon the financial institution’s products and processes. This could include driver’s license numbers, bank accounts, social security numbers, employer names, tax returns, credit reports, or health information. Improperly or inadvertently disclosing such information in violation of federal or state privacy laws could quickly expose your company to investigations, litigation, and liability that’s much more costly and disruptive than responding to a subpoena. 

That is why Maddin Hauser offers tailored subpoena response services that can help businesses make compliance efficient and cost-effective while minimizing the chances of potentially damaging errors. 

How Our Subpoena Response Program Helps Businesses

Maddin Hauser developed our Subpoena Response Program to address the needs of businesses that receive subpoenas regularly, as well as those that may not have the resources or experience needed to ensure compliance and avoid damaging mistakes. Our turnkey services offer subpoena respondents the following benefits: 

• A reasonable flat fee structure that provides predictability and allows for reliable budgeting.
• Minimal disruption and diversion of time and internal resources.
• Individualized assessment of each subpoena to determine whether the subpoena should be challenged based on jurisdiction or scope or whether responsive information and documentation should be produced.
• Uniform responses across jurisdictions and in commonly repeating circumstances.
• Identifying and escalating circumstances or concerns that may implicate broader enterprise-related risk.
• Supervised, managed, and tracked document production in collaboration with a records custodian or other in-house representatives.
• Preparation and representation of subpoenaed witnesses.
• Withholding or redacting statutorily protected personal information where appropriate.
• Obtaining cost recovery from the issuing party to defray a portion of the subpoena compliance cost.

To learn more about Maddin Hauser’s Subpoena Response Program and how it can help contain costs and minimize disruption for your business, please contact Martin Frenkel.