Responding to Subpoenas About Employees (United States)

This Wisdom of the Crowd (ACC member discussion) addresses different company practices in responding to subpoenas for information about employees. This resource was compiled from questions and responses posted on the forum of the Employment & Labor Law ACC Network.*

*(Permission was received from the ACC members quoted below prior to publishing their forum Comments in this Wisdom of the Crowd resource.)

Question:

Any best practices for responding to garden-variety (contain very little proof of a substantial claim) subpoenas? Do you generally just provide the records or do you do some due diligence to see why the records are needed and if they're truly relevant to the matter at hand? I often get subpoena requests for employees I know nothing of and on matters that have nothing to do with our company, so simply handing over the records makes me nervous.

How do you respond to "requests" from attorneys for personal files where the employee (current or former) has provided an authorization?

Wisdom of the Crowd:

• Response #1: My practice is (1) to send an email to the employee in question with a copy of the subpoena advising him/her that we have received the subpoena and ask if the employee has any concerns about producing the documents and (2) check to determine whether or not service was proper. If service was not proper, but the employee consents to production of the documents, we produce them. If service was not proper and the employee raises concerns about producing the documents, we advise the serving attorney that service was not proper. I do not attempt to determine whether or not the documents are relevant to the matter at issue. I don't think that is the role of a third party deponent. If the employee raises concerns about the scope of the subpoena, I advise him/her that s/he needs to discuss that issue with his/her attorney and move for a protective order if there is an objection.ⁱ

• Response #2: When an employer receives a subpoena for employees' records, the "custodian of records" (the person within your company responsible for maintaining such records) is obligated to produce the requested documents, or risk a court proceeding and possible monetary consequences. Unless there is some privacy or confidentiality issue, employer doesn't have the standing to object to such subpoena. The employee whose records are subject to the subpoena has standing to move to quash the subpoena.ⁱⁱ

• Response #3: I agree with this general statement; however, often the subpoena has not been properly served on the agent for service of process or there is some other deficiency. We have a policy concerning proper service of process and when we advise counsel they either follow it or get the documents some other way.ⁱⁱⁱ

• Response #4: So, this used to be our approach as well. However, we then adjusted our approach based on some benchmarking. What we learned is that some of the largest tech players are objecting to every single employee subpoena. And the vast majority of the subpoenas are either being withdrawn or the requestor simply doesn't follow up.

• In some jurisdictions, the objection will trigger a meet and confer obligation, with the real burden being on the requestor. The vast majority of the requestors will be too lazy to go through with that. Further, because your company is an uninterested third part, courts will look to the requestor to show that there is not a better source for the information sought (this is especially important where the document gathering will be more burdensome).

• This also gives the opposing party in the litigation a chance to move to quash the subpoena.

• An added benefit is that a well-trained administrator can easily generate these objections, minimizing the disruption to the business for record gathering or attorney time for review.^iv

• Response #5: We take a pretty close look at all subpoenas but almost always end up producing the records or speaking with issuing counsel to address any concerns we have. We need to be confident that there aren't any deficiencies and we are really obligated to produce records before we will do so.

• For certain kinds of records, depending on where the subpoena was filed, there may be additional notice requirements (such as the notice to consumer or employee) we pay special attention to.

• http://www.lexisnexis.com/legalnewsroom/workers-compensation/b/recent-cases-news-trends-developments/archive/2008/11/16/a-practical-approach-to-responding-to-subpoenas-in-california.aspx

• http://www.saclaw.org/Uploads/files/Step-by-Step/bus-record-sbs.pdf^v

• Response #6: I generally call the requesting lawyer to get a sense of what the suit is about and what documents the lawyer really needs/wants. This helps me narrow the parameters of the request and limit the scope of what I'll produce, and also alerts me if there is something fishy about the litigation that I should know about. Nearly all subpoenas make requests that are far broader than what is really needed, so narrowing the scope saves everyone time and effort.^vi

• Response #7: I generally call the attorney issuing the subpoena - most counsel are willing to give you background and get to the heart of what they're looking for. I've found these calls helpful in narrowing the scope and in some cases the attorney has agreed that we have no records of relevance.^vii