Issuing a Litigation Hold and Suspending Information Destruction Protocols

In Florida, what does subpoena response encompass?

A subpoena is a legal document issued by a court or other lawful authority compelling an individual or organization to provide testimony, documents, or other evidence in a legal proceeding. In Florida, subpoena response involves complying with the subpoena’s requirements, which may include appearing in court, producing documents, or providing deposition testimony.

For instance, suppose a Florida-based company receives a subpoena requesting specific documents relevant to a lawsuit. To respond appropriately, the company must first review the subpoena to ensure it complies with Florida’s rules of procedure. Then, if the subpoena is valid, the company must gather the requested documents and produce them to the requesting party within the time frame specified.

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Which laws, procedures, and regulations apply to subpoena response in Florida?

At the state level, the Florida Rules of Civil Procedure (Rule 1.410) governs the issuance and service of subpoenas in civil matters. This rule outlines the requirements for serving subpoenas and the potential consequences for non-compliance. The Federal Rules of Civil Procedure (Rule 45), on the other hand, apply to subpoenas in federal civil cases. Rule 45 covers the issuance, service, and enforcement of subpoenas in federal court proceedings.

Additionally, various Florida and federal statutes and rules often protect certain types of confidential information from disclosure in response to a subpoena. These protections ensure that sensitive information remains secure and private, even during legal proceedings. Some key Florida and federal acts, statutes, rules, and regulations that offer such protection include:

1. Florida Statutes:

• Florida Statutes § 90.502: This statute establishes attorney-client privilege, protecting communications between attorneys and clients from disclosure.
• Florida Statutes § 90.503: This statute outlines psychotherapist-patient privilege, which keeps confidential communications between mental health professionals and their patients.
• Florida Statutes § 90.504: This statute provides for spousal privilege, protecting confidential communications between spouses.
• Florida Statutes § 90.505: This statute establishes clergy-communicant privilege, which protects confidential communications between a person and a clergy member.

2.  Federal Statutes and Rules:

• Federal Rules of Evidence Rule 501: This rule governs privileges in federal court, recognizing attorney-client privilege, spousal privilege, and other common law privileges.
• Health Insurance Portability and Accountability Act (HIPAA): HIPAA establishes strict rules regarding the disclosure of protected health information, requiring subpoenas to include a court order or a satisfactory assurance that the requesting party has made reasonable efforts to notify the individual whose information they seek.
• Family Educational Rights and Privacy Act (FERPA): FERPA protects the privacy of student education records, requiring educational institutions to obtain written consent from the student or parent before disclosing such information, with certain exceptions

These only scratch the surface of what laws may apply to an individual or entity’s unique circumstances. Therefore, engaging with legal counsel is crucial to understand and follow these laws, procedures, and regulations when responding to subpoenas to avoid legal consequences such as sanctions, fines, or contempt of court.

How does issuing a litigation hold and suspending information destruction protocols apply to the overall subpoena response?

Issuing a litigation hold ensures that relevant documents and electronically stored information (ESI) are preserved and not destroyed, as mandated by both the Florida Rules of Civil Procedure and Federal Rules of Civil Procedure. Failure to comply with these preservation requirements can result in sanctions or penalties. One such condition is, typically, suspending information destruction protocols. Therefore, as soon as the company reasonably expects to face litigation, especially if this expectation predates the actual litigation hold, they should ensure that their IT and record management teams suspend any protocols that regularly delete company ESI.

For example, in a Florida case involving a breach of contract, the plaintiff issues a subpoena requesting certain financial documents from the defendant. To comply with the subpoena, the defendant must issue a litigation hold to all relevant employees, directing them to preserve any responsive information. Simultaneously, the defendant must suspend its routine information destruction protocols to ensure they do not inadvertently destroy responsive information.

Please contact our office to set up your initial consultation to determine whether subpoena response services may be available for your unique situation.

How should legal counsel issue a litigation hold, and how does it benefit a company’s institutional subpoena response process?

Counsel should consider the following when drafting a litigation hold:

• Identify key employees and departments who may possess responsive information.
• Draft a clear and detailed litigation hold notice that explains the scope of the subpoena, the types of documents for preservation, and the potential consequences of non-compliance.
• Communicate the litigation hold notice to all relevant employees and departments, and ensure they understand their obligations.
• Monitor compliance with the litigation hold and address any questions or concerns.

On the other hand, counsel should ensure clients follow this critical step when they are on the receiving end of a litigation hold:

• Suspend routine information destruction protocols, and modify or update company policies as needed.

When a set of facts is appropriate for legal intervention, there are many paths a claimant may take. We are value-based attorneys at Jimerson Birr, which means we look at each action with our clients from the point of view of costs and benefits while reducing liability. Then, based on our client’s objectives, we chart a path to seek appropriate remedies.

To determine whether your unique situation may necessitate litigation or another form of specialized advocacy, please contact our office to set up your initial consultation.

Frequently Asked Questions

1. How long should a litigation hold last?

A litigation hold should remain in effect until the litigation or investigation concludes or until it is clear that the preserved information is no longer necessary.

2.  What are the potential consequences of failing to issue a litigation hold or suspend routine information destruction protocols?

Failure to issue a litigation hold or suspend routine information destruction protocols can result in sanctions, penalties, adverse inferences, or even default judgments, depending on the severity of the non-compliance.

3.  Should a litigation hold notice be in writing, or can it be communicated orally?

While oral communication may be acceptable in certain situations, issuing a written litigation hold notice is the best practice to ensure proper documentation and understanding of the preservation obligations.

Have more questions about how your company can transform its subpoena response processes?

Crucially, this overview of issuing a litigation hold and suspending information destruction protocols does not begin to cover all the laws implicated by this issue or the factors that may compel the application of such laws. Every case is unique, and the laws can produce different outcomes depending on the individual circumstances.

Jimerson Birr attorneys guide our clients to help make informed decisions while ensuring their rights are respected and protected. Our lawyers are highly trained and experienced in the nuances of the law, so they can accurately interpret statutes and case law and holistically prepare individuals or companies for their legal endeavors. Through this intense personal investment and advocacy, our lawyers will help resolve the issue’s complicated legal problems efficiently and effectively.

Having a Jimerson Birr attorney on your side means securing a team of seasoned, multi-dimensional, cross-functional legal professionals. Whether it is a transaction, an operational issue, a regulatory challenge, or a contested legal predicament that may require court intervention, we remain tireless advocates at every step. Being a value-added law firm means putting the client at the forefront of everything we do. We use our experience to help our clients navigate even the most complex problems and come out the other side triumphant.

If you want to understand your case, the merits of your claim or defense, potential monetary awards, or the amount of exposure you face, you should speak with a qualified Jimerson Birr lawyer. Our experienced team of attorneys is here to help. Call Jimerson Birr at (904) 389-0050 or use the contact form to schedule a consultation.