HEADLIGHTS ON THE LAW Be Careful What You Put in Writing, Even to GADA BEN JORDAN GADA GENERAL COUNSEL & DIRECTOR OF GOVERNMENTAL RELATIONS Have you ever heard a good lawyer joke? I’m sure you probably have. As a lawyer, I don’t mean to denigrate my own profession, but there is a reason we all know these jokes: we live in a country full of lawyers and lawsuits. As franchise car dealers, I’m sure this comes as no surprise to you. You have probably received your fair share of “legal papers.” Often, these legal papers are not from someone suing the dealership but from someone requesting (or demanding) that the dealership produce certain records. The two most common forms are subpoenas and “Nonparty Requests for Production of Documents.” Here are some things to keep in mind when you receive them. SUBPOENAS A subpoena is a document demanding something (documents, testimony or both). It is tantamount to a court order, meaning a judge can impose a penalty for not complying. If you receive a subpoena, take it seriously and contact your counsel immediately. Subpoenas typically seek a wide array of information and impose short deadlines for responding. Time is of the essence. Court rules protect against overly broad and burdensome subpoenas, and certain information is “privileged,” which means it does not have to be produced. Yet, availing yourself of these protections usually requires having an attorney who is trained to articulate why the requests are overly broad, not relevant or objectionable based on legal privileges. Otherwise, you risk penalties for not complying with the subpoena or producing more information than you should. NON-PARTY REQUESTS FOR PRODUCTION OF DOCUMENTS You may also receive a Non-Party Request for Production of Documents. These are requests sent by a party to a lawsuit seeking records and documents from you, even though you are not named in the underlying lawsuit. These may seem less threatening than a subpoena, and you may wonder why you even received this request, especially if you do not know what the underlying lawsuit is about. Nonetheless, failing to comply with these requests can also result in penalties imposed against you, and disclosing records you didn’t legally have to produce can prevent you from later asserting your privilege. As a result, non-party requests for production of documents should be handled like subpoenas: take them seriously and notify counsel as soon as possible. BE CAREFUL WHAT YOU PUT IN WRITING (INCLUDING TEXTS AND EMAILS!) Once you’ve had to produce documents or records in a court case, you may think to yourself: “I really wish I hadn’t said that.” The cold hard truth is that your opinions or observations of another person or thing will likely be discovered if they are relevant to some part of a lawsuit. This would include any statements, jokes, insults or messages you thought would remain confidential. This also applies to any information you share with GADA, including emails or text messages you send to us. Although GADA advocates for you, we are not your attorneys. The information you share with us is not likely protected by the attorney‑client privilege, which means it could be discovered later if litigation occurs. So please be careful about what you put in writing, even to GADA. That information could be discovered in a lawsuit, and lawyers will use your words against you if they feel it will help their clients. Hence, all the lawyer jokes. This article is for informational purposes only and is not intended to be legal advice. Dealers are advised to seek advice from dealership legal counsel or other competent professionals concerning individual dealership operations. The presentation of this article is not intended to encourage concerted action among competitors or any other action on the part of dealers that would in any manner fix or stabilize the price or any element of the price of any good or service. 23 THE GENERATOR
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