In the critically acclaimed Pineapple Express, Seth Rogan plays Dale Denton (no relation), a pot smoking process server who winds up on the run after witnessing a murder. While perhaps not quite Citizen Kane, Pineapple Express certainly ranks with such greats as Harold & Kumar Go to White Castle as one of the leading films of, well, a certain genre.
In this scene, Dale cogently explains the intricacies of his job:
As challenged as they may be, even this pair understands that no one wants to be served with a subpoena.
Litigators regularly need to seek discovery from third parties. And in a transactional context, lawyers may need to reach out to third parties, even informally, for documents or information. Sometimes those third parties are also your clients on unrelated matters.
You’re not suing them, so they’re not adverse, right? That maybe so, but try making that distinction to a client who now has to retain outside counsel to search for and collect massive amounts of ESI to respond to the subpoena it received from its own lawyers. And what happens if the client decides they want to challenge the subpoena? I think even Dale (not to mention Harold and Kumar) would get the adversity there.
For these reasons, before serving a subpoena, or even informally asking a third party to produce information, it’s a good idea to run a conflicts check. This way, you’ll know whether the party you’re about to subpoena is one of your clients and you can take appropriate steps. Hey, they may even accept process, and you can avoid hiring a process server.
A side benefit of that is that it frees up folks like Dale Denton to pursue other interests. As one of Dale’s role models might say, that’s awesome. Totally awesome.