You’ve Been Served! – Dealing with Subpoenas

Adult business operators are forced to deal with a number of legal hassles. One of them is getting served with a subpoena seeking information about you, your operation, your finances, or your data. Given the increasingly hostile climate in the adult entertainment industry, operators and performers should understand how to react when served with a subpoena. If you run a website that accepts members, you likely acquire a substantial amount of personal and financial information from users which may be of interest to law enforcement, administrative agencies, or private lawyers. Performers also receive significant information and communication from their subscribers or fans which can become the subject of a legal proceeding. This article will help you understand your legal rights and obligations when receiving a subpoena.

First off, don’t panic! If you receive a subpoena, that usually means someone wants information that you have about others, and you are likely not the target of the investigation. There are many exceptions to this rule, but getting a subpoena does not automatically mean you have done something wrong. Subpoenas are commonly used by state and federal authorities to investigate crimes and are routinely issued to individuals or corporations that are not involved in wrongdoing. Civil claimants also use subpoena power in lawsuits to learn about the claims and defenses and investigate their case.

Most often, a subpoena asks for production of records or computer data. This is called a Subpoena Duces Tecum. While the subpoena will usually contain lots of scary language about contempt, appearing in court, or testifying, compliance is usually accomplished by simply emailing the requested documents by the deadline provided in the document (called the “return date”).

While your first inclination when receiving a subpoena may be to cooperate and immediately hand over the requested information, that is not always the right course of action. Some documents may be privileged or outside the scope of the subpoena. Sometimes subpoenas are sent by investigators or attorneys from other jurisdictions where they cannot be enforced. In still other instances, the recipient of a subpoena has an obligation to object and require the requestor to obtain a court order or search warrant before handing over the information. For example, operators of online platforms cannot turn over stored user communications to the government in most circumstances in the absence of a court order, under the Stored Communications Act.

To determine the scope of your subpoena compliance obligations, it is always best to consult with an attorney. You are entitled to legal representation when responding to a subpoena. Often, your lawyer can interface with the sender of the subpoena to narrow the scope of the requested documents and minimize disruption to your business or personal life. If you intend to deal with a subpoena on your own, there are several important points to keep in mind.

The first thing to understand is that you have a legal obligation to preserve all the documents or data requested in the subpoena. For example, if the subpoena asks for text messages and your mobile device automatically deletes messages older than 30 days, you have an obligation to change the auto-delete setting to ensure that you are not responsible for destruction of evidence. Your preservation obligations also extend to any archive or backup programs that are under your control. Therefore, the best thing to do when you receive a subpoena is to identify all of the potentially responsive information and make sure it is preserved. Tampering with, or destruction of, evidence is a crime and can result in significant civil sanctions as well.

Can you be compensated for your time and costs in responding to the subpoena? The short answer is yes. Most court rules allow for some reasonable compensation to be paid to the individual or company that has the burden of responding. However, the amount of compensation varies from jurisdiction to jurisdiction. If you will be seeking financial compensation, it is wise to discuss these issues with the sender of the subpoena before incurring any costs. In many cases, pulling the requested information can be done quickly and will result in little to no expense. But for significant research projects or vast data requests, the respondent is entitled to be paid. If the amount of compensation cannot be agreed between the parties, a court will resolve the issue upon request.

Frequently, subpoenas will ask for information about one of your customers or vendors. Can you notify the affected company or individual that you will be disclosing their information? The answer depends on the type of investigation. In civil cases, you typically have the right to notify third parties that you received a subpoena. Doing so will allow the affected party to assert any privacy rights or other legal challenges to disclosure of the information in a timely manner. The exception is where a court has issued a “gag” order prohibiting disclosure of the existence of the subpoena. This is done in cases where someone is concerned that providing notice of the subpoena will cause the affected party to destroy evidence or disappear. With criminal subpoenas, it is never a good idea to notify the affected party. Doing so can compromise the investigation and may constitute obstruction of justice. Criminal subpoenas are usually accompanied by instructions not to disclose the pending investigation.

Receipt of a valid subpoena requires you to conduct a thorough search of all your records, devices, computers, and data to identify responsive information. This is a serious legal obligation which should not be taken lightly. Failing to disclose information subject to a subpoena can result in significant legal sanctions being imposed. Any information that is in your possession, custody, or control should be evaluated for possible disclosure. This includes online databases that you can lawfully access, even if stored by a third party service. The most common error in responding to a subpoena is failure to conduct an exhaustive search. If you determine that you missed information that was subpoenaed, you should immediately inform the party that issued the subpoena and provide the omitted records unless legally privileged.

What if you don’t want to provide the requested records, or believe that the information should not be disclosed? A process exists to deal with those situations. Typically, the subpoenaed party will serve “objections” to the subpoena and identify the legal basis for withholding the information. Any information withheld based on privilege should be listed in a “privilege log” which is sent along with the non-privileged documents. In other instances, you or your attorney might file a motion to quash the subpoena with the issuing court, and make legal arguments as to why the subpoena is not valid or why the information cannot be produced. Such legal proceedings can get expensive, so the parties typically attempt to resolve these issues on their own before involving the courts. But in some circumstances, an agreement cannot be reached, and the court will decide the issues.

In some cases, a subpoena will actually command you to show up in court and provide testimony. If the primary goal of the subpoena is to produce documents, you can often submit a records custodian certification or affidavit to authenticate the documents instead of testifying in court. However, there are instances where the requesting party needs your live testimony on some issue. Again, you have the right to counsel in these proceedings. If your testimony may incriminate you in criminal activity, you also have a right to remain silent and invoke the Fifth Amendment on those issues. In current times, most court hearings occur remotely, so testimony can be provided with a minimal disruption of your business. If you are forced to travel to court for live testimony, you have a right to receive a witness fee and travel expenses which are set by law in the relevant jurisdiction.

Generally, a subpoena can only be issued in connection with an ongoing legal proceeding or investigation. Occasionally, people seeking information will send documents that look official and demand production of sensitive information. You have the right to verify the authenticity and validity of any document request before sending a response. Most court records are online, and the existence of pending litigation can be confirmed by checking the case docket for the relevant court. Criminal investigations are confidential, however the identity of the requesting agent should be confirmed before records are sent. Government emails are often spoofed by scammers seeking information that is otherwise unavailable. Therefore, some due diligence is necessary before transmitting documents in response to an official-looking request.

In the era of ecommerce where people are conducting business globally from their computers or mobile devices, subpoenas or other law enforcement requests can come from any jurisdiction – even foreign countries. Generally, a subpoena must be issued from a court of “competent jurisdiction” to be enforceable. As a result, not all subpoenas are binding on the receiving party. However, there may be reasons to consider cooperation with subpoenas even from foreign jurisdictions. Some countries have established Mutual Legal Assistance Treaties or other international agreements that allow foreign subpoenas to be enforced. Ignoring a subpoena is strongly discouraged.

While you may never receive a subpoena in the operation of your adult business, subpoenas are becoming much more common and can come from just about anywhere. Learning about your rights and obligations when receiving a subpoena in advance can help mitigate stress and confusion when confronted by this legal process.

Lawrence G. Walters heads up Walters Law Group. Nothing in this article constitutes legal advice. Mr. Walters can be reached at www.firstamendment.com or on social media @walterslawgroup.