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.
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, tablets, and laptops that connect to your company server.
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Written by David Steinfeld
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.