By Joseph A. Geary, Attorney
Clark, Campbell, Lancaster & Munson, P.A.
Q: My business has been served with a civil subpoena demanding business records. What should I do?
A: When a Florida business, large or small, is served with a subpoena in a civil action demanding records of the business, there are certain “do’s” and “don’ts” that business owners should follow:
- DO read the subpoena. Every page. Carefully. What records are demanded? When, where and how are you asked to produced the records? Next week? In another county or state? Physically or electronically? How much time have you been given to respond? A subpoena may seek records that contain, for example: employee information protected by privacy laws (such as HIPAA); financial data, trade secrets or other information you don’t want publicly known; records containing confidentiality agreements you might violate if you produced them. A subpoena might also ask you to produce data that is electronically stored (e-mails, for example) and in a specific file format.
- DON’T assume the subpoena has been properly issued or served, or that the lawyer responsible for issuing it has “followed the rules.” All jurisdictions have laws and court rules specifically governing both the issuance and the service of subpoenas, as well as what records can be sought, and where, how, and when you are to produce them. Your business may be entitled to the protections the law affords.
- DON’T ignore the subpoena or put off dealing with it. Treat any subpoena seriously. It is lawful process of the court, and can be enforced by that court by finding you in contempt and/or assessing attorney’s fees and court costs, if you wilfully disobey it.
- DO obtain legal advice promptly, if you have questions or concerns about the subpoena. In this context, ignorance is never bliss, and knowledge is usually power. A misstep could prove costly. A subpoena could be improper or objectionable for any number of reasons that might excuse or mitigate your obligation to obey it. However, you may not know what is proper or improper or, in the latter case, what you can do about it, if anything. The usual way to address an improper or overreaching subpoena is by a “Motion to Quash”, to be heard by a judge, filed in the court that issued the subpoena.
If your business is served with a subpoena, dealing with it proactively should always be a priority, never an afterthought.
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