The discovery process is a crucial part of any Telephone Consumer Protection Act (“TCPA”) lawsuit. Oftentimes, important information and documents, such as consent records, will be in the possession of third parties. As a result, parties to an action will frequently issue TCPA subpoenas to non-parties for information that can help substantiate their respective arguments. Acting quickly and comprehensively can ensure that your company fulfills its TCPA subpoena obligations without a significant expenditure of time and resources.
What is a TCPA Subpoena?
Rule 45 of the Federal Rules of Civil Procedure allows TCPA litigants to serve subpoenas on non-parties to compel the production of documents, request answers to written questions under oath, and/or notice depositions. As our readership may be aware, TCPA plaintiffs might use a TCPA subpoena to acquire information regarding allegedly violative telemarketing communications. In contrast, TCPA defendants may utilize a TCPA subpoena to acquire consent information from lead generators.
How to Respond to a TCPA Subpoena
There are a variety of outcomes for a non-party in receipt of a TCPA subpoena. A non-party might find that its obligations are satisfied after one comprehensive production. At the other end of the spectrum, a non-party may be drawn further into the proceeding after being compelled by the Court to respond or after being added as a party to the litigation. Following a few basic rules can help ensure that your business ends up on the right side of things. For example:
- Upon receipt of a TCPA subpoena, calendar the appropriate deadlines to serve your objections and responses. Rule 45 requires that subpoenaed parties submit their objections by the earlier of the response date listed in the subpoena or 14 days from the date of service.
- Prevent spoliation sanctions by acting as though the TCPA subpoena was accompanied with a litigation hold.
- Carefully examine the TCPA subpoena to determine what the party issuing the subpoena is specifically requesting. The Federal Rules of Civil Procedure allow a subpoenaed party to object on a wide variety of bases if, in fact, the information requested is inappropriate. It is important to note that you must lodge all appropriate objections by the 14-day deadline; otherwise, your objections are waived.
Hire Experienced Attorneys to Assist with TCPA Subpoenas
Addressing a TCPA non-party subpoena can be intimidating and burdensome. Treading the line between protecting your company’s interests, while timely providing the subpoenaing party with what it is after, is the best method for satisfying non-party obligations. In practice, however, this is often easier said than done.
Observing the aforementioned three general rules will help with a speedy TCPA subpoena response. Notwithstanding that fact, as always, the best practice is to retain experienced attorneys to guide your company through the process. Experienced TCPA attorneys will: 1) ensure that deadlines are met; 2) lodge all appropriate objections; and 3) liaise with counsel for the subpoenaing party to negotiate an end to your company’s obligations.
If you need assistance with responding to a TCPA subpoena or defending against a TCPA lawsuit, please email us at info@kleinmoynihan.com or call us at (212) 246-0900.
The material contained herein is provided for informational purposes only and is not legal advice nor is it a substitute for seeking legal advice from an attorney. Each situation is unique, and you should not act or rely on any information contained herein without seeking the advice of an experienced attorney.
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