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What do I do if I am served with a subpoena

In Florida, the rules in lawsuits allow for discovery of electronically stored information or ESI in addition to paper documents. As a result, businesses must maintain their ESI. Even if you are not involved in a lawsuit you might still receive a subpoena from a plaintiff or a defendant in a lawsuit so you need to know what to do.

How can I be subpoenaed if I am not even in the lawsuit There are two ways that a party in a lawsuit can try to get your documents or ESI even if you are not in the litigation. The plaintiff or defendant can serve you with a subpoena for the documents. They can also serve you with a subpoena for a deposition that includes a document request. This is called a subpoena duces tecum. 
Professionalism dictates that the party requesting your documents and electronic records must notify your business and co-ordinate the request or deposition. However, the circumstances may require a different approach. Therefore, the first notice you receive may be service of a subpoena by a process server.
What should I do when served with a subpoena The first step should be to contact your business lawyer. If you already have a data management plan and are following that plan, then the cost of responding and producing the data will be greatly reduced. Sometimes the party requesting the documents must even pay for the production. But without any data management plan you may expose your business to increased expenses and the risk of sanctions if you deleted the data.
Even if you deleted ESI before receiving the subpoena you can still argue that you lacked notice or had no duty to maintain the ESI. But then you are paying your corporate attorney to make those arguments and there is no guaranty that you will win. So it is more efficient to simply have a data management plan.
What is a data management plan The court rules in Florida regarding electronic data provide for a safe harbor. A safe harbor is a provision that says if you do certain things then you cannot get in trouble. Businesses are now storing data electronically and primarily using e-mail or texts to communicate. It is prudent practice to establish a method to manage your data. It is also smart to have a company policy about social media and storing company data on portable devices such as phones, tabletsPsychology Articles, and laptops that connect to your company server.  

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Written by David Steinfeld

David Steinfeld is one of the few Board Certified business law experts in Florida. He has been licensed for almost 25 years. He is AV-Preeminent rated, ranked as one of the Best Lawyers in America by U.S. News and World Report, and consistently named a Florida Super Lawyer and one of Florida’s Legal Elite. Dave has also received Martindale’s prestigious Judicial Edition Award for high reviews by Judges, its Platinum Client Champion Award and has a 10.0-Superb rating on AVVO as well as a 10.0 rating on Justia, lawyer reviews websites.

Check out business lawyer David Steinfeld online for helpful videos and articles on Florida business law, real estate disputes, and electronic discovery solutions for your business. This article is provided for informational purposes only.

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