Target on Your Back? – Navigating Subpoenas – By Rachel Hirsch

by Sara Szado on January 2, 2016

Receiving a documents subpoena can be unnerving and an unexpected diversion from normal day-to-day processes. This is especially true when the subpoena is received from a federal or state agency like the FTC.

Often a subpoena is simply a means for a party to a litigation to gather evidence and information that is helpful to its case. In other instances, a subpoena can open the door to further inquiry about your business and may even result in a separate proceeding against your company.

It is not unusual for government agencies to use the subpoena process to not only learn more about the target of their investigation but also to uncover information about potentially new targets. The key to determining whether a subpoena is more than a simple documents request is to understand the scope of the underlying litigation and the purpose behind issuing the subpoena.

The former can be achieved by reviewing publicly-filed documents in the litigation and understanding the procedural history of the case. What is the nature of the claims alleged? What is the amount of damages at stake in this case? Are their multiple-named defendants? How contentious is the litigation? The more you understand about the underlying litigation, the better prepared you can be in responding to the subpoena and objecting to any requests that appear to be overly broad or not relevant to the underlying case.

Understanding the purpose behind the subpoena can be achieved by simply communicating with the issuer. If the issuer of the subpoena is the FTC, for example, have experienced counsel contact the FTC to discuss the scope of the subpoena. The subpoena requests may have been written as intentionally broad at the outset because the FTC may want to ensure it is casting a wide net for information.

The goal in responding to a subpoena is to reduce the amount of documents to be searched and reviewed while still providing the information the FTC needs. Your counsel may also be able to ascertain from a simple phone call whether the FTC has any intentions of adding your company as a party to the underlying litigation or pursuing your company as a target in separate proceedings.

Often, FTC counsel will be upfront about their intentions regarding your company; other times, their intentions may not be as obvious. Whether or not you suspect that you may be a potential target of investigation, there are certain best practices to keep in mind:

1. Preserve all relevant papers and electronically-stored information.

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

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

4. Respond in a timely and meaningfully to a subpoena.

Failing to comply properly with a subpoena can have serious consequences. But with the help of experienced counsel, you can navigate the daunting prospect of responding to a 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.

This article appeared in issue 32 of FeedFront Magazine, which was published in October 2015. http://issuu.com/affiliatesummit/docs/feedfront-32

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