Responding to Subpoenas

Q: Subpoenas have been in the news quite a bit recently. What should I do if my association receives one?

A: It is not unusual for an association to receive a “third-party” subpoena (i.e., a subpoena issued to an individual or organization other than a party to the lawsuit) for deposition testimony or the production of documents in connection with litigation involving a dispute between competing association members; a dispute between an association member and a supplier, vendor, or the like; or any other dispute not including the association. Even though the association is not a party to the litigation, it has an obligation to respond in a timely and comprehensive manner. Specifically, upon receipt of a third-party subpoena, an association should initiate the following steps:

1. Assess whether the subpoena has been issued by a court with proper jurisdiction over the association. All courts that issue subpoenas have jurisdictional limits, which include geographic ranges (e.g., covering the geographic area of the county where the issuing court sits). They cannot legally demand a response outside those limits. Thus, the association should first determine (with the assistance of counsel) whether the subpoena is “valid,” i.e., whether it has been issued by a court with the authority to require a response. An association that succeeds in its objection to the issuance of a subpoena on jurisdictional grounds generally has no further obligation to provide documents or testimony. For example, a subpoena issued by an out-of-state county or district court may be invalid if it requires action by the association beyond the geographic reach of the out-of-state court. Subpoenas issued by federal courts are somewhat different in that they: (i) must issue from the court where the underlying action between the parties is pending; but (ii) can only require an association representative to produce documents or provide deposition testimony at a location within 100 miles of where the representative works or resides.
   
2. Assess whether the subpoena has been served properly on the association. As a general rule, federal subpoenas need to be hand-delivered to effect proper service. Subpoenas from state courts typically may be served by mail, including in Illinois. To constitute valid service, both federal and state court subpoenas need to include a check covering the required witness fee, payable to the named respondent. The witness fee in Illinois is $20.00 (plus 20¢/mile for deposition appearances).
   
3. Assess whether the subpoena is reasonable, both with respect to its timing and scope. Most state court subpoenas require at least 14 days advance notice for the production of documents or testimony. The federal rules have a similar response time. In all cases, the association must respond in a timely manner—by providing the information requested or submitting objections—or risk sanctions and/or waiver of any such objections. As a general matter, a subpoena can require the production of any information that reasonably relates to the subject of the underlying lawsuit, regardless of who is being asked to respond. It should be noted, however, that the federal rules expressly require that a subpoena “avoid imposing undue burden or expense on a person subject to the subpoena.” Thus, for example, a subpoena may be deemed to impose an “undue burden” on a third party, like an association, because of the breadth of information it requires or because the information is more readily available from a party to the lawsuit. Some state court rules provide the same or similar protections. In addition, an association may object to the production of information it considers privileged.
   
4. Preserve any documents that could be subject to the subpoena. Once a subpoena has been properly served, the association has an obligation to preserve any documents and electronically stored information (ESI) covered by the information requests set forth in the subpoena. Accordingly, not only will the association need to place a “hold” on any routine destruction of paper documents, it also must ensure that electronic document deletion, including automatic email deletion, is suspended pending the association’s response to the subpoena. In fact, it is prudent for an association to designate a representative to take responsibility for collecting and preserving all responsive documents.
   

Upon receipt of a subpoena, associations should consult their legal counsel to assist them in assessing whether the subpoena is valid, has been issued by a court of competent jurisdiction, and provides an appropriate time and location for any response. Counsel also should help to determine the categories and date ranges of information to be produced and whether any claims of privilege or other objections to the production of documents or testimony should be asserted.

The answers provided here should not be construed as legal advice or a legal opinion. Consult a lawyer concerning your specific situation or legal questions.