Subpoenas: Follow these best practices and considerations

Employers are often served with state or federal subpoenas, formally known as a Subpoena Duces Tecum, that demand the production of documents that relate to their employees or demand an employer representative appear to give testimony at a deposition, hearing, or trial.

A regularly encountered example is when an employee files a lawsuit against a third party relating to a car accident. He alleges damages of lost wages or benefits due to having missed work. While the accident is completely unrelated to his employment, it’s likely counsel for the third party will subpoena the employer and demand the employee’s personnel files, including paychecks, tax returns, attendance records, and benefit information to substantiate or disprove his claimed damages.

Addressed below are various—but certainly not all—relevant factors to consider if you are served with a subpoena like the one described above.

General considerations in analyzing subpoenas

After being served with a subpoena requesting employee (and other) records, employers should first consider taking the following steps: