June 26, 2020 Practice Points

What Not to Do When Responding to a Subpoena

Although we must be zealous advocates, courts expect reasonableness in discovery disputes.

By David J. Scriven-Young

A recent ruling from a federal district court in Texas provides a clear example of what a non-party should not do when responding to a subpoena. In MWK Recruiting, Inc. v. Jowers, Case No. 1:18-cv-0444 RP, 2020 U.S. Dist. LEXIS 73265 (W.D. Tex. Apr. 27, 2020), the plaintiff, a legal-recruiting firm, sued a former employee of the firm alleging that he misappropriated trade secrets and breached the non-compete and non-solicitation provisions of his employment agreement. The plaintiff subpoenaed several non-party law firms requesting communications with the defendant, as well as documents regarding attorneys placed at the law firms by the defendant, and monies paid to the defendant for those placements. Although most of the law firms complied with the subpoenas, one law firm engaged in a months-long discovery fight that was criticized by the district court in its written opinion denying the law firm’s motion to quash.

The court was critical of the law firm’s correspondence with plaintiff’s counsel, who attempted to obtain the records by agreement:

The Court could not be more disappointed with the manner in which [the law firm] has handled this subpoena. [Counsel for the law firm’s] petty, technical, overly-argumentative emails are a study in what is wrong with civil discovery in our court system today. The subpoena at issue sought a very small amount of uncontroversial information. None of it was privileged or confidential. [Plaintiff] had served similar subpoenas on other . . . firms, all of which produced documents without objection. [The law firm’s] approach, however, was to evade, complain, and refuse. The fact that these actions were taken by a law firm makes it all the more frustrating. If anyone should know better than to act this way one would think it would be a law firm . . . . There was not a single thing that [law firm] did to respond to this subpoena that was “pragmatic.” Despite the countless hours [counsel] spent writing emails, [the law firm] eventually produced the requested documents—but it forced [plaintiff] to file a motion to compel before it did so. [Counsel] could have saved [the law firm], as well as [plaintiff], thousands of dollars in attorney time by being cooperative up front. Instead, he chose to fight, forcing all parties, the Court included, to expend resources unnecessarily.

The court also criticized the law firm for seeking attorney fees in its motion to quash:      

But this is not the end of things. Having chosen the stubborn route, [the law firm] also audaciously requests that the Court award it the attorney’s fees it incurred in picking this fight. Recall that in the first week of February, [plaintiff’s counsel] offered to accept as sufficient exactly what [the law firm] finally produced two months later. [The law firm] refused, and instead forced [plaintiff’s counsel] to wait two months, write a dozen more emails, and then file a motion to compel. [Plaintiff’s counsel] even repeated that same offer multiple times before he filed the motion. Yet [the law firm] somehow thinks that it should be awarded attorney’s fees. Apparently it believes obstinance is something worth rewarding. Far from it. If anything, [the law firm] should count itself lucky that [plaintiff] did not request fees from [the law firm], as the Court would have been inclined to grant them. Because [plaintiff] did not, the Court will express its disapproval of [the law firm’s] actions only in words and not dollars. Either way, [the law firm] should be embarrassed.

Counsel for non-parties who receive subpoenas should closely review this opinion and remember that, although we must be zealous advocates, courts expect reasonableness in discovery disputes. Courts expect counsel to meet and try to come to an amicable agreement whenever possible. Counsel should also expect that everything they write in an email to opposing counsel will become an exhibit to a discovery motion, so they should not send an email containing something that they would not want the court to see. Follow these guidelines, so you do not end up on the wrong end of a court’s written opinion criticizing your behavior.

David J. Scriven-Young is an attorney with Peckar & Abramson, P.C. in Chicago, Illinois.


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