A subpoena is a formal written order issued by a court of law or some other body commanding a person (or a company representative) to appear and testify at a hearing, trial, or deposition.

In some instances, the subpoena can also require the production of documents.  A subpoena is a court order and failing to respond can result in court-issued penalties.

While many businesses are fortunate to have never been served with a subpoena, some companies are not so lucky.  When you find yourself among the unfortunate, there are several steps that a company should take before deciding on a course of action.  Some of those steps include:

  1. Determine if the subpoena is valid.  In most cases, a subpoena can only be issued if there is an ongoing civil, criminal, or administrative proceeding.  Absent a legal proceeding, the subpoena is likely to have no legal import and can be ignored.
  2. Determine if the subpoena was properly served.  Failure to properly serve a subpoena can sometimes relieve a company from having to respond at all.
  3. Investigate the underlying legal proceeding.  Most, if not all, subpoenas have an attached legal proceeding.  Before responding to a subpoena, the company should investigate to determine what the underlying proceeding is about.  Investigation will also reveal whether the subpoena was timely issued and proper.
  4. Consider contacting outside counsel to determine if, and to what extent, the company should respond to the subpoena.  Subpoenas can issue from federal and state courts and can be issued from jurisdictions where the company has little to no business activity.  Getting outside counsel involved can help the company navigate through the various procedural rules and ensure that the company is best protected when it must respond to a subpoena.
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