Question: I am the HR manager in a small company, and we have just received a third-party subpoena requesting documents related to one of our former employees. Can you please provide some guidance on what a third-party subpoena is exactly, what we need to do and whether there are any issues we should be aware of in responding?
Answer: A subpoena is a court-sanctioned document, issued in connection with a legal proceeding, which requires an individual or entity to either give testimony or produce documents or other tangible evidence. A subpoena requesting the production of documents, such as the one you received, is commonly known as a subpoena duces tecum. When its recipient is not a party to the legal proceeding, the subpoena is referred to as a “third-party” subpoena.
The rules relating to how subpoenas are issued and responded to are controlled by differing state and federal laws. If you or your organization has been served with a subpoena, it would be wise to consider engaging an attorney who will be able to help guide you through the process. The attorney will also help you determine whether you have legal exposure, because it is not unusual for a party in a litigation to use the subpoena process to obtain information from a non-party, so as to figure out whether it wants to bring claims against that non-party.
Make sure to calendar when your response is due. You should also inform anyone else in the company who may have documents responsive to the requests, and institute a litigation hold notice to make sure that documents that may be responsive are not destroyed. The specific number of days you have to respond varies state by state. Failing to timely respond to a subpoena could entail significant consequences for the company. See, e.g., Fed. R. Civ. P. 45(e). Thus, if you will be unable to respond to the subpoena in a timely fashion, you should request a written extension of time from the party who served it.
Next, you must collect the potentially relevant documents and decide how to respond to the subpoena. Generally, you may object to some or all of the document requests, move to quash (i.e., challenge or modify) the subpoena because it does not comport to legal requirements and/or produce some or all of the requested documents.
1. Objecting to Requests – If you decide to object, the company may commonly do so by filing a motion to quash with the court identified in the subpoena. Major issues that you must consider when deciding whether to object are:
a. Right to Privacy – In many states, individuals have strong privacy rights. E.g., Cal. Const. art. 1, § 1. Therefore, personal information such as Social Security numbers, bank accounts, addresses and other medical, personnel and payroll records, should often not be produced without employees' written authorization. Note that a subpoena sometimes requests information about individuals other than the employee who is the subject of the legal proceeding underlying the subpoena (e.g., personnel files of the employee's managers). Those individuals are also entitled to the protection of their private information.
b. Medical Information – Protecting employees' medical information should be of particular concern because of the range of laws applicable to the issue. In many cases, absent a court order compelling production of documents, you will likely need a valid signed release from the employee whose medical information is sought. One such law protecting medical information is the Health Insurance Portability and Accountability Act, 29 U.S.C § 1181 et seq.; 42 U.S.C. §§ 300gg, 1320d et seq. (“HIPPA”), which prohibits the unauthorized disclosure of specified health information. 42 U.S.C.A. § 1320d-6. Under narrow exceptions provided in HIPPA regulations, employers may be able to disclose protected information in response to a subpoena. See 45 C.F.R. § 164.512(e).
Another law protecting medical information is the Americans with Disabilities Act, 42 U.S.C. §§ 12101-12213 (“ADA”), which requires that information about employees' medical conditions or histories be kept separately from regular personnel files and be treated as confidential information. 29 C.F.R. § 1630.14. Some courts have held that disclosure of medical information in response to a subpoena may be made without violating the ADA. See, e.g., In re Nat'l Hockey League Players' Concussion Injury Litig., No. MDL 14-2551 SRN/JSM, 2015 WL 4621368, at *7 (D. Minn. July 31, 2015) (collecting cases). But the Equal Employment Opportunity Commission has successfully argued the opposite position in at least one case. Bennett v. U.S. Postal Serv., EEOC DOC 0120073097, 2011 WL 244217, at *4 (Jan. 11, 2011) (“A request for an employee's medical records pursuant to a discovery request in a civil action would not fit into one of the exceptions to the ADA's confidentiality requirement.”).
Similarly, the Genetic Information Nondiscrimination Act of 2008, 42 U.S.C. 2000ff et seq. (“GINA”), provides that employees' genetic information must be kept confidential. 29 C.F.R. § 1635.9 (a). “Genetic information” includes genetic tests of employees or their family members; family medical histories; employees' requests for, or receipt of, genetic services; employees' participation in clinical research that includes genetic services by them or a family member; genetic information of a fetus carried by the employee or a family member; and genetic information of any embryo legally held by the employee or a family member using an assisted reproductive technology. 29 C.F.R. § 1635.3(c). GINA's regulations contain six exceptions to the limitations on disclosing genetic information. 29 C.F.R. § 1635.9(b)(1)-(6).
The third exception allows employers to disclose information expressly requested by a court order, but not by a subpoena. 29 C.F.R. § 1635.9(b)(3); see Regulations Under the Genetic Information Nondiscrimination Act of 2008, 75 Fed. Reg. 68,912, 68,928 (Nov. 9, 2010) (codified at 29 C.F.R. pt. 1635) (“This [third] exception does not allow disclosures in other circumstances during litigation, such as in response to discovery requests or subpoenas that are not governed by an order specifying that genetic information must be disclosed.”).
c. Undue Burden – You might be able to object on the ground that the request to gather documents is very broad and, thus, places an undue burden on your company. For example, a request for the personnel files of individuals holding the same title as did your former employee (e.g., secretary) might require you to gather dozens of individual files and review hundreds of documents for sensitive and private information. If this is the case, you should discuss with your attorney whether you can legally limit the documents you produce.
2. Moving to Quash – Parties do not always follow the requirements of applicable laws when issuing subpoenas. For example, subpoenas might be issued by the wrong person, served on the wrong person, or require responses within shorter deadlines than those allowed by law. If this is the case, you may want to file a motion with the court to quash the subpoena. See, e.g., Fed. R. Civ. P. 45(d)(3).
3. Moving for a Protective Order – Before the due date of the subpoena, you may ask for an order prohibiting the disclosure of specific categories of documents, establishing parameters for the production of documents (time and place) or requiring that confidential documents not be disclosed.
4. Producing Documents – If, after reviewing the subpoena, you find that any of the requested documents do not raise grounds for objection, you may produce them as instructed. Note that you are likely still required to respond in writing even if you cannot produce any requested documents because they do not exist or are not in your possession or control.
As you can see, determining whether, and to what extent, to produce documents in response to a subpoena can be complicated, and unreasonable decisions might create legal liability for the company. Therefore, you would be well-advised to consult an attorney as soon as you receive a subpoena, especially if it seeks confidential or sensitive information, or a large number of documents.
Keisha-Ann G. Gray is a partner in Proskauer's labor and employment department, resident in the firm's New York office. Proskauer Associate Jose (Joe) Perez, resident in Proskauer's Los Angeles office, assisted with this article.