Your Small Business Receives a Subpoena — What Should You Do?

Let’s say you’re a small business owner. You just started a little coffee shop on the corner of Hill and Main, or you run the auto repair place that your grandfather founded back in the 1930s. Things have been going well — until, one day, you receive a subpoena. You take a quick look. In addition to the word subpoena, a box on the first page of the document jumps out at you. “Disobedience of this subpoena may be punished as contempt by this court,” it says there in all caps.

What should you do?

First, don’t panic; the fact that you’re receiving a subpoena doesn’t necessarily mean that you or your business are under suspicion of criminal activity.

Second, don’t ignore the subpoena or even delay dealing with it. Chances are that you have only a few days to respond. Ignoring the deadline may lead the court to issue a warrant for your arrest.

Third, you should take another look at the document and ask some important questions: Is this a deposition subpoena or a trial subpoena? Is it an order for you to produce documents or other material, to appear in person and testify, or both? When are you expected to show up for testimony and where? What is the deadline for the production of documents? Which items does the subpoena say you must furnish? (The request can include anything: notes, minutes, digital files, deeds of ownership, machinery, clothing…)

Fourth, after answering the questions I just mentioned, you should ensure that the documents that you must provide will not be destroyed. You do so by issuing a litigation hold to relevant employees.

An attorney can help you respond

Fifth, I suggest that you contact a business attorney with civil litigation experience. He or she will help you find the best way of responding to the subpoena whether that be compliance, objection or another choice. To determine the best route your attorney will look at a number of factors: Is the material that you must provide relevant to the case in question? Will furnishing the demanded documents help with the discovery of admissible evidence? Could complying with the order cause you or your business undue burden or expense? Do you even possess the material that the subpoena lists? Does the material that you must provide include confidential information about your business or its personnel? E.g. does it include trade secrets or medical records? Are there other reasons to object?

One more thing, just for clarification: Any California resident including a corporation or an LLC can be subpoenaed. In cases where an organization receives a subpoena to testify, the person who is most qualified to represent the company should appear.

Kevin Moore, Founder of Kevin J. Moore & Associates, is focused in the areas of estate planning, trusts and probate services with additional expertise in both domestic and international business transactions and tax planning and tax controversy representation for individuals and companies.