Archive for July, 2011

What do I do when I have been served with a third party Subpoena?

Thursday, July 28th, 2011

In patent litigation, it is increasingly common for third parties to be served with subpoenas in lawsuits between competitors. These types of subpoenas often ask for sensitive information far beyond the scope of what the requesting party is eligible to receive. Parties which receive subpoenas are under a strict time limit to respond and the choice on how to answer is very important.

There are two choices on how to proceed without giving up valuable information. A party can file a motion to quash the subpoena or serve a response on the other party and refuse to provide any sensitive information. If a company chooses to file a motion to quash a subpoena it will face the uphill burden of having to show the requested information is not relevant or unduly burdensome to accumulate. For a motion to quash, the court will assume that the subpoena is proper and the moving party must prove to the court that the information requested is inappropriate. This approach is advantageous in that one is able to force the issue in a shorter time frame and potentially be protected from future requests for information.

If a party chooses to serve a response to the subpoena on the requesting party it is important not rely on blanket objections. Each question must be answered carefully and reasons given for withholding information. If your company and the requesting party are not able to come to an agreement on what information will be exchanged then the requesting party must file a motion to compel with the court. In this action the moving party faces the burden of showing that their requests are relevant and not unduly burdensome. This approach is beneficial in that it forces the other side to show why their requests are relevant, however, it will take more time and more control over the discovery process is given to the other side.

We would be happy to answer any questions you may have about this process and assist you in any way possible.