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tl;dr Best Practices for Responding to a Documents Subpoena

路 Issue 32 路 October 2015

Target on Your Back?

Navigating Subpoenas by Rachel Hirsch

Rachel Hirsch


eceiving a documents subpoena can be unnerving and an unexpected diversion from normal day-to-

enced counsel contact the FTC to discuss the scope of the

day processes. This is especially true when the sub-

subpoena. The subpoena requests may have been written as

poena is received from a federal or state agency like the FTC.

intentionally broad at the outset because the FTC may want to

Often a subpoena is simply a means for a party to a liti-

ensure it is casting a wide net for information.

gation to gather evidence and information that is helpful to

The goal in responding to a subpoena is to reduce the

its case. In other instances, a subpoena can open the door to

amount of documents to be searched and reviewed while still

further inquiry about your business and may even result in a

providing the information the FTC needs. Your counsel may

separate proceeding against your company.

also be able to ascertain from a simple phone call whether the

It is not unusual for government agencies to use the sub-

FTC has any intentions of adding your company as a party to

poena process to not only learn more about the target of their

the underlying litigation or pursuing your company as a target

investigation but also to uncover information about potentially

in separate proceedings.

new targets. The key to determining whether a subpoena is

Often, FTC counsel will be upfront about their intentions

more than a simple documents request is to understand the

regarding your company; other times, their intentions may not

scope of the underlying litigation and the purpose behind is-

be as obvious. Whether or not you suspect that you may be

suing the subpoena.

a potential target of investigation, there are certain best prac-

The former can be achieved by reviewing publicly-filed documents in the litigation and understanding the procedural

tices to keep in mind: 1.


history of the case. What is the nature of the claims alleged? What is the amount of damages at stake in this case? Are

2. Consider filing for a protective order to limit the scope of the subpoena or motion to quash the subpoena.

their multiple-named defendants? How contentious is the litigation? The more you understand about the underlying litiga-


broad or not relevant to the underlying case.

Review relevant third-party marketing agreements to determine up-to-date compliance.

tion, the better prepared you can be in responding to the subpoena and objecting to any requests that appear to be overly

Preserve all relevant papers and electronically-stored in-


Respond in a timely and meaningfully to a subpoena. Failing to comply properly with a subpoena can have seri-

Understanding the purpose behind the subpoena can

ous consequences. But with the help of experienced counsel,

be achieved by simply communicating with the issuer. If the

you can navigate the daunting prospect of responding to a

issuer of the subpoena is the FTC, for example, have experi-

subpoena and avoid a future target on your back.


Rachel Hirsch is a Senior Associate at Ifrah PLLC, a law firm in Washington, D.C.

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