Navigating Subpoenas and NDAs: A Legal Guide

I woke up this morning, drove the wife to work, and when I got back home I had a process server waiting at my door with a subpoena out of Hamilton County Indiana.

This was not a normal subpoena - but one requested through a court. It looks as if my client has more than a fishing expedition happening.

When you find yourself in the complex intersection of a subpoena for information and a Non-Disclosure Agreement (NDA) with a client, it can be a legally tricky situation.

Balancing your legal obligations and protecting confidential information is paramount. This article aims to provide guidance on how to best respond to a subpoena for information while you have an NDA in place for that client.

Understanding the Subpoena

A subpoena is a legal order requiring the recipient to produce documents, testify, or provide information in connection with a legal proceeding. It's crucial to understand the nature and scope of the subpoena.

Generally, there are two main types: subpoena ad testificandum (requiring testimony) and subpoena duces tecum (requiring the production of documents). Knowing which type you're dealing with is essential, as it impacts your response strategy. When you obtain a request for both you know the folks involved are pretty serious about moving forward.

1. Review the NDA

Before taking any action, carefully review the NDA you have in place with the client. The NDA outlines the parameters of confidentiality and the circumstances under which disclosure may be allowed or required. Pay special attention to any provisions related to legal obligations and exceptions for disclosure.

2. Seek Legal Counsel

Given the complexities of NDAs and subpoenas, it's highly advisable to consult with legal counsel. An experienced attorney can help you navigate the legal terrain and ensure that your response complies with both the NDA and applicable laws.

3. Assess the Scope of the Subpoena

Work with your attorney to assess the subpoena's scope and relevance. Determine whether the information requested is covered by the NDA, as well as whether the information is essential to the legal proceeding. If the information sought is outside the scope of the NDA or unnecessary for the legal matter, you may have grounds to contest or limit the subpoena.

4. Confidentiality Measures

If it is determined that you must comply with the subpoena, take measures to protect the confidentiality of the client's information. This may involve requesting a protective order from the court to ensure that the disclosed information remains confidential and is used only for the intended legal purpose.

In my case this is exactly what I have requested.

5. Notify the Client (if legally allowed)

Depending upon the subpoena you may or may not be able to make notification to your client, especially if the subpoena is in regards to a criminal action. If you decide to respond to the subpoena, you should notify the client promptly. Discuss the situation, your obligations under the NDA, and your intention to comply with the subpoena, emphasizing the need to maintain the confidentiality of their information.

6. Redact Sensitive Information

When responding to the subpoena, consider redacting or withholding sensitive information not directly relevant to the legal matter. This can help strike a balance between compliance and protecting your client's interests.

7. Consider the "Need to Know" Principle

Limit the disclosure of information to only those parties involved in the legal proceeding who have a legitimate "need to know." This minimizes the risk of broader disclosure and helps preserve confidentiality.

8. Maintain a Paper Trail

Document all actions taken regarding the subpoena, including communications with the client, legal counsel, and the parties involved in the legal proceeding. This documentation will be vital in case of any disputes or challenges related to the NDA.

When faced with a subpoena for information while bound by an NDA, it's essential to approach the situation with utmost care and a deep understanding of both legal documents.

Seeking legal counsel, assessing the scope of the subpoena, and maintaining strict confidentiality are key steps to navigating this intricate legal landscape. Ultimately, by carefully balancing your obligations, you can protect your client's interests and comply with legal requirements as well as ensure you are not opening yourself up to liability.