If you own a business, the day may come when you are served with a Subpoena. The Subpoena could relate to a lawsuit involving a business partner, customer, supplier or employee of yours. The Subpoena will typically: (1) demand the production of a wide range of documents in a short time frame and (2) require a corporate representative to bring the requested documents to a scheduled deposition. Responding to a Subpoena can be time consuming and expensive at best and can result in potential liability at worst. Below is a discussion of some frequently asked questions by recipients of Subpoenas.
Why am I receiving a Subpoena? The Subpoena itself will tell you the parties to the lawsuit, the court in which the case is pending, and the documents that the party issuing the Subpoena wants from you. However, it will have little detail regarding the underlying lawsuit itself. If you receive a Subpoena, it is a good idea to obtain as much information about the lawsuit as possible, including the claims and defenses being asserted by the parties and the status of the case. The pleadings that have been filed in the lawsuit can be obtained at the courthouse. Alternatively, you can call the attorney issuing the Subpoena to obtain background information and pleadings related to the lawsuit. This information can help you determine whether the issuing attorney is simply looking for information from you or whether your business may have potential liability in the lawsuit.
Do I have to produce all of the information requested? Yes, unless the issuing attorney agrees to a more limited scope, which is relatively common. Subpoenas are often issued with a very wide and burdensome scope. A conversation with the issuing attorney can oftentimes narrow the scope of the documents that you are required to produce to a more manageable level. Make sure to document any agreed-upon deviation from the scope of the Subpoena in a written communication with the issuing attorney.
Can I get more time to respond? Typically yes, but only if granted by the issuing attorney or the Court. Wisconsin law allows Subpoenas to require the production of information in as little as ten days. However, if the Subpoena will require a significant amount of response time, the issuing attorney will likely grant you more time. If the attorney does not, a motion requesting more time may be filed with the Court. Make sure to document any agreed-upon time extension in a written communication with the issuing attorney.
Do I have to attend the scheduled deposition? By agreement, the information requested by the Subpoena can be produced without the need for a deposition. However, under Wisconsin law, all parties to the case must agree to the document production before the deposition.
Will I get paid for responding? Not unless you ask. While you will receive a nominal witness fee with the Subpoena (typically less than $30.00), there will be no opportunity for reimbursement apparent on the Subpoena itself. However, the law does allow a party receiving a Subpoena to file a motion for a protective order and further allows the Court to condition a party’s response on the requesting party’s payment of the “reasonable costs” of producing the information requested. Attorneys who issue Subpoenas are typically willing to pay at least copying costs, and potentially for some time spent gathering documents as well, to avoid a motion hearing.
Is there anything I can do to avoid responding? If informal discussions with the issuing attorney regarding the scope of the request, time to respond, or cost of responding are unsuccessful, a subpoenaed party can file a motion for a protective order. Under Wisconsin state law, a motion for a protective order must be filed “promptly and in any event at or before the time specified in the subpoena for compliance therewith.” Wis. Stat. §805.07(3). The motion can seek to: (1) quash or modify the subpoena if it is unreasonable and oppressive or (2) require the issuing party to pay the reasonable costs of compliance. Wis. Stat. §807.07(3)(a) and (b).
Consider contacting an attorney if you receive a Subpoena. An attorney can help you determine whether your business is facing potential liability in the lawsuit. In addition, an attorney potentially can help you to reduce the scope of the Subpoena, secure more time to respond, or recover some of your cost incurred in responding.
If you have any questions about how the information in this article may affect you or your business, please contact John Laubmeier at jlaubmeier@stroudlaw.com or (608) 257‑2281 or your Stroud attorney.
DISCLAIMER: The information in this article is provided for general informational purposes only, is not necessarily updated to account for changes in the law, and should not be considered tax or legal advice. This article is not intended to create, nor does the receipt of it constitute, an attorney-client relationship. You should consult with your own legal and/or financial advisors for legal and tax advice tailored to your specific circumstances.
