Business & Intellectual Property Law

Business & Intellectual Property Law

Not all documents are created equal. Despite what a subpoena may purportedly demand, your business may not have to comply with the requests contained therein. Sometimes, this may be due to procedural defects. Alternatively, the subpoena requests may be too broad, require an unduly burdensome response, or seek privileged information. For the final post in Wolk Levine’s Subpoena Series, we will highlight some key objections under California law, which your business can potentially make in the event it is served with an overreaching subpoena. Similar to past posts from this Series, this post will focus on deposition subpoenas for business records, since they are very common. You can find Part 1 of 2 of the Subpoena Series here: https://bit.ly/2SjpZBA and https://bit.ly/2ETQla0.

Substantive Response
A subpoena for the production of business records must describe records with particularity; however, it cannot ask a deponent questions that require a substantive response. For example, a subpoena may request an email communication between your business and a customer, but it cannot request the dates which your business interacted with the customer or for you to describe the contents of the email. However, keep in mind that requesting categories of documents may be and is frequently sufficient to identify them. Recall also that, California requires the subpoenaing party to provide a “Notice to Consumer” to an applicable individual when requesting certain types of documents including, but not limited to, documents that contain a consumer’s personal information and are kept by physicians, therapists, accountants, attorneys, banks, insurance companies, etc., as well as personnel or employee records.

Objections Based on Privilege
Other than an objection for documents that are not specifically named or particularly described (See ”Subpoena Series: Responding in California” here: https://bit.ly/2SjpZBA), your business is most likely to object to a subpoena on the basis that the requested documents contain information that is subject to a legally recognized privilege.

This post will discuss a few key privileges that may apply to your business’s documents and records; however, it is prudent that you consult an attorney when your business is served with a subpoena to be sure that you do not inadvertently disclose privileged information. Additionally, filing meritless objections and therefore failing to respond could subject your business to contempt charges, so if you plan to object or think the subpoena requests privileged information, consulting an attorney is the best course of action.

Attorney-Client Privilege
The attorney-client privilege is probably the most recognized privilege in legal parlance. It protects communications between an attorney and a client that are transmitted in the course of the parties’ professional relationship. This includes communications between your company’s attorney, officers, board of directors, and other third parties when disclosure of the communication is reasonably necessary to further the interest of your business. Such communications includes the retainer agreement and even fee statements between your business and its attorney.
Tax Returns
California law also allows private parties, including businesses, the ability to refuse to disclose information that they furnished to governmental entities in connection with corporate taxes, employment taxes, and property taxes as well as documents and records that would expose an employee’s private information.

Trade Secret
As a business owner, you may be most excited to know that you can object to a subpoena if it requests documents or records that pertain to your business’s trade secrets. Under California law, a trade secret can include information such as a formula, pattern, compilation, program, device, method, technique, or process that 1) derives independent value from not being generally known to the public or to other persons who can obtain economic value from its disclosure or use; and 2) is the subject of efforts that are reasonable under the circumstances to maintain its secret. In addition to technical materials, examples of trade secrets may include pricing data, customer lists, internal market research, marketing and advertising plans, and plans about business opportunities.

Keep in mind that simply claiming a privilege is generally not enough to create a legally valid objection. If the subpoenaing party challenges the objection, the burden of proof is generally on your business to establish that a privilege exists. You will likely have to provide a privilege log, which sets forth the particular privilege claimed as well as sufficient factual information for other parties to evaluate the merits of that claim.

If this sounds daunting, it is because it is designed to be. California law generally favors discovery, even when it comes to non-parties, and the burden of proof is generally on the objecting party to demonstrate that it does not have to produce the requested information. At the risk of beating a dead horse, your business should consult with an attorney before responding to a subpoena to ensure that all of its rights are protected. If you have further questions or need additional assistance, contact us at (818) 241-7499, [email protected] or book a free consultation on our Instagram, @wolklevine!