Third-Party Subpoena Response: How to Streamline the Process and Reduce Costs

18 October 2024 by Anith eDiscovery subpoena third-party-subpoena subpoena-response

Takeaway: Responding to subpoenas is a routine part of legal work, but that doesn’t make it any less challenging—especially regarding third-party subpoena response. Legal teams face the pressure of tight deadlines, document review, and compliance risks. Responding to a third-party subpoena can drain time, money, and resources if not managed efficiently. Utilizing key strategies can streamline your third-party subpoena response process and reduce costs.

What is a subpoena?

A subpoena is a legal document that compels a person or organization to either provide information (documents, records, emails) or testify under oath, often in the context of a legal proceeding. Essentially, a subpoena acts as a formal request from the court, and failure to comply can lead to fines or even legal penalties. There are two primary types of subpoenas:

Subpoena duces tecum: Requests documents, records, or other evidence.
Subpoena ad testificandum: Requires someone to testify in person or through a deposition.

Legal professionals often encounter both, but third-party subpoenas introduce additional complexities that require strategic planning to manage efficiently.

What is a third-party subpoena?

A third-party subpoena directs someone or an entity not directly involved in the underlying lawsuit or investigation to testify or produce documents. For example, if two businesses are suing each other, the court may issue a subpoena to a separate company for relevant documents. This subpoena places a unique burden on the recipient since they are not part of the dispute but still have legal obligations to respond. Third-party subpoenas can be incredibly time-consuming because they require:

Reviewing all relevant information to determine what’s responsive.
Ensuring compliance with privacy laws and confidentiality agreements.
Coordinating with in-house or outside counsel to meet deadlines.

Because third-party subpoena responses are unplanned, they can cause disruptions in regular business operations.

How to respond to a third-party subpoena

When you receive a third-party subpoena, it’s important to follow a clear, efficient process to avoid legal risks. Here’s a simplified guide to responding effectively:

Review the subpoena: Start by carefully reading the subpoena to understand what’s required. Identify the type of documents or testimony requested, check the deadlines, and note any legal privileges that may apply.
Notify key stakeholders: Immediately inform your legal team and any departments that hold relevant information, such as IT or HR. If any third party’s confidential data is involved, let the third party know about it.
Assess legal obligations: Work with your legal counsel to determine what you must provide. If the request seems too broad or burdensome, you may be able to negotiate a narrower scope or seek an extension on the deadline.
Gather and review documents: Begin collecting the necessary documents, working with IT for digital files and relevant departments for physical ones. Carefully review everything for relevance and privilege, ensuring that no sensitive information is accidentally included.
Handle redactions and privilege: If documents contain privileged or sensitive data, make the necessary redactions. You may also need to provide a privilege log containing **the reason for withholding documents along with the document’s name.
Produce the documents: Once reviewed, submit the documents according to the subpoena’s specifications, ensuring you meet the required format and deadlines.
Keep records: Maintain detailed records of your response, including a copy of the subpoena, a list of what you provided, and any privilege logs or redactions. This documentation helps protect your organization in case of disputes later.

Why third-party subpoena responses can be costly

Organizations receiving a subpoena must follow a detailed process to comply legally. However, several factors can drive up the costs, including:

Manual document review: Reviewing large volumes of emails, contracts, or internal files for responsive documents.
Short deadlines: Courts often provide a narrow window to respond, requiring quick mobilization of resources.
Involvement of external counsel: Many companies hire law firms to ensure compliance, but legal fees can add up quickly.
Confidentiality concerns: Sensitive information may require redaction or further legal guidance, complicating the review process.

5 Steps to streamline the third-party subpoena response process

Here are five key strategies to improve efficiency and reduce the burden of third-party subpoenas.

1. Develop a standard operating procedure (SOP)

A standard operating procedure (SOP) ensures that your legal team knows exactly what steps to take when a third-party subpoena arrives. It also saves time by eliminating guesswork and ensures compliance from the moment you receive a subpoena. Your SOP should outline the following:

How to log and track incoming subpoenas.
Who is responsible for reviewing the documents and gathering evidence.
Guidelines for engaging external counsel, if necessary.
A timeline for meeting deadlines.

2. Automate document review with technology

Manual document review is one of the most time-consuming tasks in the subpoena process. Legal technology tools such as e-discovery platforms can dramatically reduce the time it takes to locate and review relevant documents. These tools allow you to:

Search through thousands of files instantly using keywords.
Identify duplicate documents to avoid redundant work.
Tag and categorize documents for easier access.

3. Conduct a proactive data inventory

One of the best ways to prepare for third-party subpoenas is to maintain a proactive data inventory. A data inventory involves keeping an organized, up-to-date record of where your company stores critical information, including:

Customer records
Vendor contracts
Internal emails and memos

Knowing exactly where to find the information requested by a subpoena saves valuable time and reduces the risk of missing key documents.

4. Negotiate subpoena scope early

Legal teams often need to attempt to negotiate the scope before accepting the subpoena. However, you have the right to engage with the issuing party to limit the scope of the request. Narrowing the scope helps reduce the volume of documents to review and lowers the risk of overproduction.

When negotiating scope, consider:

Requesting more time if the initial deadline is too tight.
Limiting document production to only the most relevant periods.
Identifying any privileged information that needs to be excluded.

Sometimes, you can negotiate a cost-sharing agreement with the party requesting the subpoena. This approach is beneficial when the subpoena requires the production of a large volume of documents or expensive redaction efforts. Courts may be sympathetic to cost-sharing arrangements, especially when compliance creates an unreasonable financial burden on the third party. Explore this option early in the process to avoid absorbing unnecessary costs.

Reducing the burden of third-party subpoenas

In the fast-paced legal world, responding to third-party subpoenas efficiently is a valuable asset. While the process may seem daunting initially, thoughtful planning and smart resource management will help you meet your obligations without unnecessary stress or expense.

By staying proactive and strategic, legal teams can reduce non-compliance risks and improve overall response times. Investing in tools like e-discovery platforms and building internal processes now will better prepare your organization for future requests, helping your team stay focused on high-priority legal work with minimal disruption.

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