Nonprofits and associations commonly receive subpoenas. Though it can be stressful to receive one, engaging in appropriate due diligence can help an organization effectively manage its response.In-house general counsel who are unfamiliar with litigation processes or government investigations (as applicable) should strongly consider retaining experienced external counsel when a subpoena is first received in order to minimize both the costs incurred and the level of legal jeopardy the organization faces.Whether state or federal, civil, or administrative, subpoenas can be (sometimes surprisingly) costly to administer and answer. However, taking time to handle subpoenas properly is critical. Here are the fundamental considerations that shape an effective response and that organizations should keep in mind when a subpoena is received.1. Timing and Service Subpoenas (or similar vehicles, such as civil investigative demands) are governed by their own rules and regulations (e.g., Federal Rule of Civil Procedure 45). Key among those rules is the time allotted for the recipient to object to or challenge the subpoena. To avoid default or waiver, determine your response deadline early on and consider requesting an extension of the response window if the circumstances necessitate gathering more information to inform your response. Additionally, if you are asked to accept service of process of a subpoena, remember that accepting service of process does not mean accepting the terms of the subpoena itself. This can show an initial posture of good faith and cooperation, which the circumstances may warrant.2. Preservation Hold Notice IssuanceNotify key executives and records custodians about the subpoena early on and communicate the significance of the process. Instruct custodians and IT personnel to preserve and cease auto-delete functions of any potentially relevant information sources. While most everyone is aware of the need to preserve all documents and emails, authorities are increasingly seizing o

Companies commonly receive subpoenas. Though it can be stressful to receive one, engaging in appropriate due diligence can help an organization effectively manage its response.In-house general counsel who are unfamiliar with litigation processes or government investigations (as applicable) should strongly consider retaining experienced external counsel when a subpoena is first received in order to minimize both the costs incurred and the level of legal jeopardy the organization faces.Whether state or federal, civil, or administrative, subpoenas can be (sometimes surprisingly) costly to administer and answer. However, taking time to handle subpoenas properly is critical. Here are the fundamental considerations that shape an effective response and that organizations should keep in mind when a subpoena is received.1. Timing and Service Subpoenas (or similar vehicles, such as civil investigative demands) are governed by their own rules and regulations (e.g., Federal Rule of Civil Procedure 45). Key among those rules is the time allotted for the recipient to object to or challenge the subpoena. To avoid default or waiver, determine your response deadline early on and consider requesting an extension of the response window if the circumstances necessitate gathering more information to inform your response. Additionally, if you are asked to accept service of process of a subpoena, remember that accepting service of process does not mean accepting the terms of the subpoena itself. This can show an initial posture of good faith and cooperation, which the circumstances may warrant.2. Preservation Hold Notice IssuanceNotify key executives and records custodians about the subpoena early on and communicate the significance of the process. Instruct custodians and IT personnel to preserve and cease auto-delete functions of any potentially relevant information sources. While most everyone is aware of the need to preserve all documents and emails, authorities are increasingly seizing o

he Act.Click here to view a sample order and consent form.Subpoena---Charter.pdfISP subpoena court orderOBTAINING A SUBPOENA - CALIFORNIA CENTRAL DISTRICTHere is general information about obtaining a subpoena in the Central District of California.A party with a case pending in the United States District Court for the Central District of California may request, by mail or in person, that the clerk issue a subpoena.A request by mail must include:A cover letter containing the request for a subpoena, including the case name and case number;A subpoena form (AO-88, AO-88A or AO-88B); andA self-addressed stamped envelope.A party may request a subpoena in person in Room from the intake window at any of the Court's three divisions. The party must bring a subpoena form (AO-88, AO-88A or AO-088B) and be prepared to provide the case name and case number. The clerk will issue a subpoena, signed but otherwise in blank, to the requesting party.The party must complete the subpoena before service. See Fed.R.Civ.P. 45(a)(1)(A).An attorney who is a member of the Bar of this Court may also issue a subpoena from this Court. See Fed.R.Civ.P. 45(a)(3).Refer to Fed.R.Civ.P. 45 for additional information.

So, you’ve received a third-party subpoena. Now what? A third-party subpoena is the procedural mechanism that allows parties in litigation to obtain evidence from non-party individuals and/or entities. For federal cases, Federal Rule of Civil Procedure 45 governs this process. Rule 45 outlines specific procedures that litigants must follow to serve a subpoena seeking documents and/or testimony properly. The Rule also provides protections non-parties can use to alleviate their burden in producing responsive documents. Most states have their own rules that govern non-party discovery that often, but not always, mirror Rule 45.The process to respond to a third-party subpoena often involves several steps and could require consultation with outside counsel. But keeping these five important considerations in mind can make the response process less daunting:Confirming Proper Service and Jurisdiction:One of the first steps should be to ensure that the subpoena has been served properly and that the court issuing the subpoena has jurisdiction over the matter. This means checking that the subpoena was delivered to the correct person and in the correct manner, and that the court has the authority to request the information. If the subpoena was not

Image: Kaylee Walstad, EDRM.In Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024), the Hon. J. Mark Coulson construed a Fed.R.Civ.P. 45 motion to quash or modify a subpoena, which would have been heard in New York, as a Fed.R.Civ.P. 26(c) motion for protective order that was resolved in the District of Maryland.Here, Defendants’ motion is based, at least in part, on Rule 26 given Defendants’ citation to the same in support of its motion to quash….. The undersigned will therefore construe Defendants’ motion as one for a protective order under Rule 26(c) and analyze it accordingly.” Hon. J. Mark Coulson in Rullan v. Goden, 2024 WL 1191600 (D. Md. Mar. 20, 2024). Rullan involved a dispute over what I will loosely describe as control of a business. Id. at *1. While the case was pending in the District of Maryland, some assertedly relevant documents were at the Davidoff Law Firm in New York. Id. The law firm was not a party in the lawsuit.Plaintiff served a subpoena on the law firm, seeking six categories of documents. Id. at *4. Service was in New York, as was the location of the requested production. Id. at *5.Defendants

ates shall have power to punish by fine or imprisonment, or both, at its discretion, such contempt of its authority, and none other, as—(1) Misbehavior of any person in its presence or so near thereto as to obstruct the administration of justice;(2) Misbehavior of any of its officers in their official transactions;(3) Disobedience or resistance to its lawful writ, process, order, rule, decree, or command.18 U.S.C. § 401. In addition, Rule 42 of the Federal Rules of Criminal Procedure provides that "[a]ny person who commits criminal contempt may be punished for that contempt after prosecution on notice." Fed. R. Crim. P. 42.With respect to civil contempt, Rule 70 of the Federal Rules of Civil Procedure states that if a party refuses "to perform any … specific act [directed by the court] … within the time specified," the court "may also hold the disobedient party in contempt." Fed. R. Civ. P. 70.In addition, if a party fails to comply with a subpoena issued in connection with discovery, Rule 45 of the Federal Rules of Civil Procedure provides that "[t]he court for the district where compliance is required—and also, after a motion is transferred, the issuing court—may hold in contempt a person who, having been served, fails without adequate excuse to obey the subpoena or an order related to it. Fed. R. Civ. P. 45(g).Aside from constitutional, statutory, or regulatory authority, federal courts also have "inherent authority" to enforce compliance with their directives by means of civil contempt. See Int'l Union, United Mine Workers of Am. v. Bagwell, 512 U.S. 821, 831 (1994); Fuery v. City of Chicago, 900 F.3d 450, 463 (7th Cir. 2018); EEOC v. Guardian Pools, Inc., 828 F.2d 1507, 1516 (11th Cir. 1987).Until the U.S. Supreme Court's ruling in Taggart v. Lorenzen, 139 S. Ct. 1795 (2019) (discussed below), it was generally recognized that a federal court's inherent power to hold a litigant in civil contempt could be exercised only if: (i) the order with which the litigant allegedly failed to comply is clear and unambigu

l a non-party to produce metadata for a category of documents that the plaintiff sought for the purpose of selecting the documents she would request from the third party.In Pinn v. Consumer Credit Counseling Foundation, Inc., No. 1:23-mc-0974-DII, 2023 WL 7288745 (W.D. Tex. Nov. 3, 2023), U.S. Magistrate Judge Susan Hightower addressed whether Plaintiff could compel a third party to produce metadata for a category of documents to allow Plaintiff to select the documents she would then request the third party to produce.Plaintiff filed a putative class action alleging that Defendants violated the Telephone Consumer Protection Act, 47 U.S.C. § 227, by calling her home telephone number in April 2022. Id. at *1. Defendants claimed that Plaintiff consented to the calls when she visited the website healthinstantly.org and entered her name and phone number.Magistrate Judge Hightower began her analysis with a brief description of the legal standard under Federal Rules of Civil Procedure 26 and 45. She explained that under Rule 26(b)(1), the scope of permissible discovery is broad, and a party “may obtain discovery regarding any nonprivileged matter that is relevant to any party’s claim or defense and proportional to the needs of the case.”Tom Paskowitz, Sidley Austin re:Pinn v. Consumer Credit Counseling Foundation, Inc., No. 1:23-mc-0974-DII, 2023 WL 7288745 (W.D. Tex. Nov. 3, 2023), U.S. Magistrate Judge Susan Hightower.During discovery, one Defendant provided Plaintiff with a link from trustedform.com, a website operated by a company called ActiveProspect that installs a proprietary computer script on websites to record a user’s interactions with that website. ActiveProspect claims that these recordings, called certificates, can be preserved and replayed on demand, verifying that a consumer consented to a particular action. The TrustedForm certificates allegedly authenticate the recordings of the consent and allow the certificates to be sold as marketing leads. The link to

e there is no “discovery” in the UPC that is comparable in scope, duration or expense to U.S.-style discovery, there are various procedural mechanisms to obtain evidence that is in another’s possession.Order to Produce EvidenceIn the U.S., Federal Rule of Civil Procedure 34 authorizes parties to request documents and things from each other. Usually, parties request broad categories of documents from their opponents and have to produce reams of documents themselves. As long as they are “relevant to any party’s claim or defense and proportional to the needs of the case,”1 broad document requests are fair game and it is not unusual for parties to produce hundreds of thousands of pages. All of this comes with lengthy efforts and enormous expenses for tasks like document collection, privilege review, confidentiality designations, and production logistics. The court only gets involved to resolve disputes. Documents in the possession of third parties can be obtained by way of subpoenas under Federal Rule of Civil Procedure 45; while the scope of requested documents is generally narrower than for litigants, the burden on subpoenaed parties is usually still substantial.In the UPC, a party can obtain evidence in another’s possession, but the procedure is targeted and controlled by the court. “At the request of a party which has presented reasonably available evidence sufficient to support its claims and has, in substantiating those claims, specified evidence which lies in the control of the opposing party or a third party, the Court may order the opposing party or a third party to present such evidence, subject to the protection of confidential information.”2 Under the same conditions, the court may also order “the communication of banking, financial or commercial documents under the control of the opposing party.”3Various safeguards are built into this provision: To begin with, the requesting party must have already supported its claim with reasonably available evidence. Further, it must “specify” the eviden

der to disclose information in the course of litigation to which it is a party although the provider should take appropriate steps to disclose the minimum necessary. (See 45 CFR §§ 164.506 and 164.501, definition of "healthcare operations").If the provider is not a party in the action, the provider should determine if the court or agency issuing the subpoena or order has jurisdiction over the provider. As a general rule, state courts or state agencies only have jurisdiction over entities located or operating within their state. State court or agency subpoenas, orders, or warrants issued across state lines are generally unenforceable; the subpoena must be issued by a court within the state in which the provider is located or in which it operates. The rules for federal court subpoenas or orders differ federal law generally allows a federal court or agency to issue a subpoena nationwide, although the location at which the witness must appear or produce records may be limited. (See, e.g., Fed. R. Civ. Proc. 45(b)(2)). If the court or agency that issued the subpoena or order does not have jurisdiction over the provider, the provider is not obligated to respond to the subpoena or order. If there is any question about whether the court or agency has jurisdiction or whether the subpoena was properly served, the provider should contact its attorney or the entity issuing the subpoena to confirm its jurisdictional authority and/or explain that the entity will require a subpoena issued by a court or agency with appropriate jurisdiction before it will respond.If the court or agency has jurisdiction over the provider, the provider's response will depend on the type of entity issuing the subpoena, order, warrant, or demand as described below. In essence, the HIPAA rules balance the need for disclosures in legal proceedings against patient privacy. To that end, the rules are designed to ensure that an independent judicial or administrative officer has authorized the disclosure, protections are in place to pr

Inside this issue:Advances in Videoconferencing Do Not Change the Subpoena Power of the CourtCalifornia Codifies Standard for Defense Experts’ Alternative Causation OpinionsNew MDLs Created for Bard Implants and Insulin Price FixingEPA Issues Gatekeeping Framework for New PFAS and New Uses of Existing PFASNYDOH’s Proposed Regulations Expand Notification Requirements for PFAS in Drinking WaterEPA Releases White Paper Explaining Approach to Part 2 of Asbestos Risk EvaluationLearn more about Dechert's Product Liability and Mass Torts servicesHot TopicsAdvances in Videoconferencing Do Not Change the Subpoena Power of the CourtIn In re Kirkland, 2023 WL 4777937 (9th Cir. July 27, 2023), the Ninth Circuit held that a district court could not subpoena testimony outside the geographic scope of Federal Rule of Civil Procedure 45(c), even if the witness could appear remotely via videoconferencing.Under Rule 45(c), a district court has the power to compel a witness to testify at trial if the trial takes place: (A) within 100 miles of where the person resides, is employed, or regularly transacts business in person; or (B) within the state where the person resides, is employed, or regularly transacts business in person, if the person is a party or commanded to attend trial. Rule 43(a) permits courts “[f]or good cause and compelling circumstances” to allow for testimony by videoconference.In In re Kirkland, witnesses who had previously testified in a related case when they resided in California had since relocated to the U.S. Virgin Islands. One party sought to introduce that prior testimony before the bankruptcy court, arguing the witnesses were unavailable and making the prior testimony admissible hearsay. The bankruptcy court concluded the “unavailability” had been engineered for strategic purposes and that the pr