Subpoenas often arrive unexpectedly: handed to a receptionist, delivered to a resident agent, mailed to an office manager, or served on an owner at home. The steps taken in the first two days frequently determine whether the response is routine or becomes a problem.

1. Do not ignore it. A subpoena is a court or government command. Failing to respond can lead to an order compelling compliance and, in some cases, sanctions or contempt.
2. Do not produce anything yet. Sending documents immediately, before anyone has reviewed the scope, can waive objections and disclose privileged or confidential information that did not need to be produced.
3. Calendar every date. Note the compliance date, the date of service, and any deadline for objections. Some objection deadlines run from service and are shorter than the compliance date.
4. Identify who issued it and why. Read the caption. Is it a private lawsuit, a court in another state, a government agency, the IRS, or a grand jury? Is your business a party, or a third party?
5. Preserve relevant records. Suspend routine deletion of emails, texts, and files that may be responsive. See preserving documents below.
6. Limit internal discussion. Route the subpoena to one responsible person and counsel. Avoid emails speculating about the matter, which may themselves become discoverable.
7. Get advice before speaking to anyone. If the subpoena comes from a government agency or grand jury, or if investigators contact employees, involve counsel before anyone gives an interview.

The word “subpoena” covers very different legal documents. The right response depends on which one your business received.

Maryland civil subpoenas issued in circuit court proceedings are generally governed by Maryland Rule 2-510. That rule authorizes subpoenas compelling attendance, testimony, and production of designated documents, electronically stored information, or tangible things at court proceedings or depositions. Nonparty business records are frequently obtained through deposition subpoenas, although the parties may agree to production without requiring the records custodian to appear. Requests for documents directed to parties in the litigation are ordinarily governed by Maryland Rule 2-422 instead. Different procedures may apply to subpoenas arising from out-of-state proceedings, and a subpoena cannot necessarily be used as a stand-alone demand for business records outside the procedures authorized by Maryland law.

Deadlines to object

• Deposition subpoenas for documents. Under Rule 2-510(f), a person served with a subpoena commanding production at a deposition may file a written objection stating its reasons within ten days after service of the subpoena. After a timely objection, the serving party may not obtain the materials except by court order, and may move to compel within the time the rule allows.
• Subpoenas for court proceedings. Under Rule 2-510(e), a person served with a subpoena to attend a court proceeding may move for a protective order. The motion must be filed promptly and, whenever practicable, at or before the time specified in the subpoena for compliance.
• Protective orders. A deponent may also seek a protective order under Maryland Rule 2-403.

What a court can do

For subpoenas requiring attendance at a court proceeding, Rule 2-510(e) allows a court, to protect a person from annoyance, embarrassment, oppression, or undue burden or cost, to quash or modify the subpoena, set a different time or place for compliance, condition production on the issuing party advancing the reasonable costs of production, or require that the materials be delivered to the court subject to later inspection. For deposition subpoenas, a recipient may seek similar protection under Rule 2-403. Rule 2-510(h) also requires parties and attorneys to take reasonable steps to avoid imposing undue burden or cost on the person subject to the subpoena.

Producing records properly

• Organization. Under Rule 2-510(g), documents must be produced as they are kept in the usual course of business, or organized and labeled to correspond to the categories in the subpoena.
• Electronic information. A person need not produce electronically stored information from sources that are not reasonably accessible because of undue burden or cost, but must identify those sources and explain why.
• Privilege. A person withholding materials on the basis of privilege must describe them sufficiently for the requesting party to evaluate the claim.
• Custodian certificate. Under Rule 2-510(i), for trial, a records custodian may deliver copies to the clerk with a certificate that they are complete and kept in the regular course of business, which can avoid a personal appearance unless the subpoena specifically states why the custodian’s presence is required.

A court in another state generally cannot directly compel a Maryland business to produce records or appear. Instead, Maryland has adopted the Uniform Interstate Depositions and Discovery Act. Under Courts and Judicial Proceedings Section 9-402, a party seeking discovery must submit the foreign subpoena to the clerk of the circuit court in the county where discovery is sought, and the clerk must promptly issue a Maryland subpoena incorporating its terms, with contact information for counsel of record and any unrepresented party. The submission must also include a sworn statement addressing Maryland’s protections for legally protected health care, subject to statutory exceptions.

An out-of-state subpoena served directly on a Maryland business, without going through that process, may not be enforceable as issued. Whether to insist on proper domestication, or to cooperate voluntarily, is a strategic decision that depends on the relationship with the parties and the burden involved. Disputes about a domesticated subpoena are generally heard by the Maryland court.

Subpoenas issued in federal lawsuits are governed by Federal Rule of Civil Procedure 45. Key provisions for business recipients:

• Objections. Under Rule 45(d)(2)(B), a written objection to producing documents or permitting inspection must be served before the earlier of the time specified for compliance or 14 days after the subpoena is served.
• Place of compliance. Under Rule 45(c)(2)(A), production may be required at a place within 100 miles of where the person resides, is employed, or regularly transacts business in person.
• Undue burden. Under Rule 45(d)(1), the party or attorney issuing the subpoena must take reasonable steps to avoid imposing undue burden or expense on the person subject to it.
• Cost protection. If the issuing party moves to compel after an objection, the order must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.
• Mandatory grounds to quash. Under Rule 45(d)(3)(A), on timely motion, the court must quash or modify a subpoena that fails to allow a reasonable time to comply, requires compliance beyond the geographic limits, requires disclosure of privileged or other protected matter if no exception or waiver applies, or subjects a person to undue burden.
• Privilege claims. Under Rule 45(e)(2)(A), a person withholding information as privileged must expressly make the claim and describe the nature of the withheld materials in a manner that allows the parties to assess it.

A business responding to a subpoena owes obligations not only to the court but often to its customers, employees, and partners. Before producing anything, review whether the responsive records include:

• Attorney-client privileged communications and attorney work product, which should be withheld and listed on a privilege log
• Trade secrets and confidential business information, such as pricing, margins, customer lists, and strategy, which may warrant a protective order limiting who can see them. See our guide on trade secret protection.
• Customer and client information, which may be subject to contractual confidentiality obligations or notice requirements
• Employee personnel and payroll records, which contain personal information that should be produced only to the extent required
• Health information. Medical and dental practices and other covered entities must follow the HIPAA rules for disclosures in judicial and administrative proceedings, which generally require a court order or specified assurances before protected health information is produced in response to a subpoena. See our Maryland medical and dental practice legal guide.
• Financial account information, which may be subject to specific statutory procedures

Federal and state agencies often have statutory authority to issue administrative subpoenas or civil investigative demands without first filing a lawsuit. Examples include labor and wage agencies, consumer protection regulators, licensing boards, and inspectors general. Agency subpoenas are generally not self-enforcing; if a recipient does not comply, the agency usually must ask a court to enforce it. But that does not make them optional, and courts generally enforce agency subpoenas that are within the agency’s authority and seek relevant information.

Why an agency subpoena deserves careful handling

• It may be the first sign of an investigation of the business itself, not just a request for information about someone else.
• The response, including any cover letter or narrative explanation, can become evidence.
• The scope of production can often be negotiated with agency staff, and early, professional engagement can shape how the agency views the business.
• Employees may be contacted directly by investigators, and the business should have a plan for those contacts.

For wage and employment investigations, see our guides on the Maryland Wage Payment and Collection Law and worker misclassification.

The IRS uses a summons rather than a subpoena. Under 26 U.S.C. Section 7602(a), the IRS may examine books, papers, records, or other data that may be relevant or material to determining the correctness of a return, making a return where none was filed, determining tax liability, or collecting tax. It may summon the person liable for the tax, any officer or employee of that person, any person in possession of the relevant books of account, or any other person the IRS deems proper, to appear, produce records, and give testimony under oath.

Two very different situations

• A summons about your own taxes. A summons directed to the business or its owners about their own tax liability means the IRS is actively examining or collecting from them. It should be handled as part of the overall tax controversy, with attention to whether the matter could become criminal. See our guides on navigating a civil tax controversy and eggshell audits and criminal tax investigations.
• A third-party summons. A business may also be summoned for records concerning a customer, vendor, contractor, or employee. For third-party summonses subject to the notice requirements of 26 U.S.C. Section 7609, the IRS generally must notify the person identified in the summons within three days after service and no later than 23 days before the scheduled examination of the records. A person entitled to notice generally has 20 days after notice is given to initiate a proceeding to quash the summons and must mail copies of the petition to the summoned business and the IRS by registered or certified mail within that period. However, Section 7609 contains significant exceptions, including certain summonses issued in aid of tax collection and certain criminal-investigation summonses. Accordingly, not every third-party summons requires taxpayer notice or provides a right to petition to quash.

Limits on the summons power

Under Section 7602(d), the IRS may not issue or begin an action to enforce a summons with respect to a person while a Justice Department referral is in effect for that person, such as a recommendation for grand jury investigation or criminal prosecution. An IRS summons is not self-executing; if a recipient does not comply, the government generally must seek enforcement in federal court, where the recipient can raise defenses. A business should not treat that as a reason to ignore a summons, but it does mean the scope and validity of a summons can be evaluated and, where appropriate, contested.

A grand jury subpoena means prosecutors are conducting a criminal investigation. It may seek documents (a subpoena duces tecum), testimony, or both. The business may be only a source of records about someone else, or its own conduct, or that of its owners or employees, may be under scrutiny.

Witness, subject, or target

The United States Department of Justice’s Justice Manual, Section 9-11.151, defines a “target” as a person as to whom the prosecutor or the grand jury has substantial evidence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant. A “subject” is a person whose conduct is within the scope of the grand jury’s investigation. A business that receives a subpoena may be neither, and may simply hold relevant records, but that should be determined through counsel, often by communicating directly with the prosecutor, rather than assumed.

Challenging a grand jury subpoena is difficult

Federal Rule of Criminal Procedure 17(c) allows a court to quash or modify a subpoena for documents if compliance would be unreasonable or oppressive. In United States v. R. Enterprises, Inc., 498 U.S. 292 (1991), the Supreme Court held that a grand jury subpoena issued through normal channels is presumed reasonable, that the recipient bears the burden of showing otherwise, and that a motion to quash on relevancy grounds must be denied unless there is no reasonable possibility that the category of materials sought will produce information relevant to the general subject of the investigation. In practice, the most useful work is usually negotiating scope, timing, and format with the prosecutor.

No Fifth Amendment shield for business records

In Braswell v. United States, 487 U.S. 99 (1988), the Supreme Court held that the custodian of corporate records may not resist a subpoena for those records on the ground that the act of production would incriminate the custodian in violation of the Fifth Amendment. The records are held in a representative capacity, and the act of production is treated as the corporation’s. This rule applies to collective entities. Different considerations may apply to a sole proprietor producing personal business records. Individuals retain their own rights with respect to testimony, which is one reason owners and employees need their own advice.

Employees and separate counsel

When a business is involved in a government investigation, the interests of the company and its individual owners, officers, or employees may diverge. Company counsel represents the company. Individuals may need separate counsel, and employees who are interviewed by company counsel should be told that the lawyer represents the company, not them. See our guide on outside general counsel for how company representation works.

Once a business receives a subpoena, it should take reasonable steps to preserve records that may be responsive. In practice, that means issuing a written litigation hold to the employees who control relevant information, suspending automatic deletion of emails and files, and preserving text messages and data on mobile devices and cloud accounts used for business.

The consequences of failing to preserve can be severe. In civil litigation, courts can impose sanctions for spoliation of evidence. In a federal investigation, destroying, altering, or concealing records with the intent to obstruct can be a separate federal crime, which can be far more serious than the matter under investigation.

Preservation duties may begin even before a subpoena arrives, once litigation or an investigation is reasonably anticipated. See our Maryland business litigation guide and what to do when your business is sued.

Responding to a subpoena takes staff time, and electronic searches can be expensive. A non-party business is not required to absorb unlimited cost to support someone else’s lawsuit.

• Maryland state court. For subpoenas requiring attendance at court proceedings, Maryland Rule 2-510(e) permits a court to condition production on the issuing party advancing reasonable production costs. Deposition subpoenas are governed by Rule 2-510(f), and recipients may seek protection from undue burden or expense under Rule 2-403. Cost reimbursement is not automatic, but a business may request appropriate protection or negotiate payment of reasonable compliance expenses.
• Federal court. Under Federal Rule 45(d)(2)(B)(ii), an order compelling production must protect a person who is neither a party nor a party’s officer from significant expense resulting from compliance.
• By agreement. Issuing attorneys frequently agree to narrow requests or pay reasonable copying and retrieval costs, particularly when asked early.

Government subpoenas and IRS summonses follow their own rules, and cost recovery is more limited. The practical goal is a response that is complete, accurate, and no broader than required.

• Ignoring the subpoena. Silence can lead to an order compelling compliance and sanctions.
• Producing everything immediately. Over-production can waive objections and disclose privileged or confidential information unnecessarily.
• Missing the objection deadline. In Maryland, objections to a deposition subpoena for documents are due within ten days after service, and federal objections are generally due within 14 days.
• Assuming it is routine. A subpoena from an agency or grand jury may concern the business itself.
• Talking to investigators without counsel. Informal statements can become evidence.
• Deleting or altering records. This can turn a third-party request into a far more serious problem.
• Overlooking contractual notice obligations. Customer and vendor agreements may require notice before producing their information.
• Writing narrative explanations. A cover letter that tries to explain the documents can become evidence.

The party that issued it can ask the court to compel compliance, and a court may impose sanctions or hold a noncompliant witness in contempt. Under Maryland Rule 2-510(j), a witness who fails to obey a subpoena without sufficient excuse is liable to body attachment and a fine. Agency subpoenas and IRS summonses are generally enforced through court proceedings. Ignoring a subpoena almost always makes the situation worse and more expensive.

The compliance date is stated on the subpoena, but objection deadlines may be shorter. Under Maryland Rule 2-510(f), a written objection to a deposition subpoena commanding production of documents must be filed within ten days after service. For a subpoena to a court proceeding, a motion for a protective order must be filed promptly and, whenever practicable, at or before the time specified for compliance. Federal subpoenas generally require objections before the earlier of the compliance date or 14 days after service.

Yes. Common grounds include undue burden or cost, overbreadth, lack of relevance, insufficient time to comply, privilege, and the need to protect trade secrets or confidential information. In Maryland, a court may quash or modify a subpoena for a court proceeding, change the time or place of compliance, condition production on the issuing party advancing reasonable costs, or require delivery to the court, and a recipient of a deposition subpoena may seek protection under Rule 2-403. Many concerns can also be resolved by negotiating with the issuing attorney.

Generally, a party in another state’s lawsuit must have the subpoena issued through a Maryland circuit court clerk under the Maryland Uniform Interstate Depositions and Discovery Act, Courts and Judicial Proceedings Section 9-402. An out-of-state subpoena served directly, without that process, may not be enforceable as issued, although a business may choose to cooperate voluntarily.

Often the business bears modest costs, but it does not have to absorb unreasonable expense. A Maryland court may require the party serving the subpoena to advance the reasonable costs of production, and a federal court compelling production must protect a non-party from significant expense. Cost-sharing is frequently negotiated with the issuing attorney.

If an IRS summons concerns the business’s or its owners’ own taxes, the IRS may be examining or collecting a tax liability, and the matter should be evaluated as part of the broader tax controversy, including any potential criminal exposure. If the summons concerns a customer, vendor, or employee, the third-party notice provisions of 26 U.S.C. Section 7609 may apply. When applicable, the person entitled to notice generally has 20 days after notice to petition to quash the summons. Important exceptions exist, including certain collection and criminal-investigation summonses. If a recipient does not comply, the IRS generally must seek judicial enforcement.

Not necessarily. Many businesses receive grand jury subpoenas simply because they hold records relevant to someone else’s conduct. But a grand jury subpoena means a criminal investigation is underway, and the business, its owners, or its employees could be subjects or targets. Counsel should determine the company’s status, often by speaking with the prosecutor, before the company produces records or anyone gives an interview.

Generally, corporations and other collective business entities cannot refuse to produce entity records by invoking the Fifth Amendment privilege against self-incrimination. In Braswell v. United States, 487 U.S. 99 (1988), the Supreme Court held that a corporate records custodian cannot resist production of corporate records on the ground that the act of production would personally incriminate the custodian. Different considerations may apply to a sole proprietor producing personal business records, and individuals retain Fifth Amendment protections concerning compelled testimonial self-incrimination. Business owners and employees may therefore need separate legal advice when criminal exposure is possible.

Employees have the right to speak with investigators, and the company should never discourage cooperation or retaliate. But employees are not required to give an interview on the spot, and they may wish to have counsel present. The company should have a plan for handling contacts, and company counsel should make clear that it represents the company rather than individual employees.

Not always, but a brief review is usually worthwhile. A lawyer can confirm the subpoena is valid, identify the objection deadline, narrow the scope, protect privileged and confidential information, and arrange cost reimbursement. For any subpoena from a government agency, the IRS, or a grand jury, or one connected to a dispute involving your business, legal advice before responding is strongly recommended.