anticipation of litigation, from production and object to a subpoena on grounds of privilege when appropriate.14 iii. Harmful Disclosure of Confidential Information The Court is authorized to quash, modify or condition a subpoena to protect a third party from unnecessary or unduly harmful disclosures of confidential information. The law protects the disclosure of any records that implicate the bank’s trade secrets, confidential research, development or commercial information; the bank can object to any subpoena requests impacting these interests.15 c. Undue Burden A party issuing a subpoena is under an obligation not to unduly burden a third party when it issues the subpoena.16 A bank can object if a subpoena subjects the bank to undue burden by requesting (1) irrelevant information; (2) documents the issuing party does not need; (3) documents whose costs exceed its usefulness; (4) extensive time periods; (5) documents not described with particularity; and (6) information whose burden outweighs its benefit.17 The issuing party should ensure the information requested by the subpoena identifies relevant documents.18 A burdensome request is one seeking the disclosure of more information than what is relevant to the lawsuit or failing to appropriately limit the time period of the requests. A bank should coordinate with its data management team to identify the universe of responsive documents and determine if the volume unduly burdens the bank. Remember, if the burden is significant, the bank can request the issuing party advance the reasonable costs of production.19 4. Asserting Objections by Motion to Quash If the bank believes it cannot reasonably comply with a subpoena, it should confer with legal counsel to determine its options. The bank must always respond to a subpoena, but that does not mean the response must comply with the subpoena. Other responses include objecting to a subpoena or negotiating with the issuing party to narrow its scope. If negotiations prove unsuccessful, the bank can serve written objections on the party who issued the subpoena setting out the grounds for the objections or file a motion to quash with the court raising its objections to the subpoena for the court to determine. If a subpoena contains multiple requests and the bank makes a partial production addressing certain requests, ensure that any response includes a statement confirming that the production does not waive Continued from page 16 Continued on page 20 18 NEBRASKA BANKER
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