The Subpoena and the Client’s Deletion Request
Northline Compliance LLC maintains client files in a cloud system and a 90-day rotating backup. Its written retention schedule says active files are kept seven years after closure; archived matters are kept indefinitely if a hold is in place. On 3 March, the firm receives a subpoena duces tecum from a state agency for all records relating to client Harbor Metalworks concerning a 2021 environmental audit. The same afternoon, Harbor’s owner emails the managing partner: “We’re moving to a new entity. Delete everything from the old matter-I don’t want it following us.” The firm’s IT vendor says deleted files remain in backups for 90 days and can be restored for $2,500. A junior analyst has already moved the Harbor folder to a “to be purged” queue but has not emptied it. The firm has no written litigation-hold procedure. The client has not been told about the subpoena. The agency’s cover letter sets a response date 14 days away.
1. What immediate preservation steps must the firm take, and why can it not follow the client’s deletion instruction?
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Stop the destruction. The firm must immediately remove the Harbor folder from the “to be purged” queue, suspend automatic deletion for the matter, and instruct the IT vendor in writing to place a hold on all primary and backup copies. The 90-day backup rotation is a destruction mechanism once a hold is reasonably anticipated; it must be paused for this client.
Why the client’s instruction cannot be followed. A client may control the scope of the representation, but the client cannot direct the firm to destroy evidence after a subpoena has been received. The firm has an independent duty not to assist in spoliation and must comply with lawful process or assert a valid objection. Deleting the records could expose the client and the firm to sanctions, adverse inference, and professional discipline. “I don’t want it following us” is not a lawful basis for destruction.
Litigation hold. Because the subpoena has been received, a written hold should issue the same day to all custodians, including the analyst, the managing partner, and anyone who worked on the 2021 audit. The hold should identify the matter, the date range, the types of records, and the consequences of deletion. It should tell custodians not to alter metadata and to suspend auto-delete rules on email and chat.
Preserve, then assess. The firm should preserve the records in place, take a forensic image or export if necessary, and document the chain of custody. Only after preservation should it assess relevance, privilege, and proportionality with counsel.
2. How should the firm handle the IT vendor, the backups, and the $2,500 restoration cost?
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Vendor instruction. The firm should send the vendor a written preservation notice that identifies Harbor Metalworks, the relevant date range, and all repositories, including cloud storage, email, local drives, and backups. The vendor should confirm in writing that deletion and rotation are suspended and that no data has been overwritten.
Backups. The firm should determine whether the primary records are complete before deciding whether to restore backups. If the primary file is intact, restoring every backup may be disproportionate. If records were deleted before the hold, restoration may be necessary to reconstruct the file. The firm should preserve the backup set first, then restore selectively. The vendor should not reuse or overwrite the backup media.
Cost. The $2,500 restoration cost is a cost of preservation, not a fee the firm can simply pass to the client without agreement. The firm should pay or authorize the cost to meet its preservation duty and then address allocation with the client in writing. It should not let a fee dispute delay preservation.
Documentation. The file should record the vendor’s confirmations, the scope of the hold, the restoration decision, and who authorized the cost. If the vendor cannot confirm preservation, the firm should consider a forensic consultant and notify counsel immediately.
3. What should the firm communicate to Harbor Metalworks and the agency, and how should it document those communications?
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Notify the client. The firm should notify Harbor’s owner promptly that a subpoena has been received and that the records have been placed on hold. The notice should be in writing, explain that the deletion instruction cannot be followed, and describe the preservation steps taken. If the firm believes the client may not understand the legal significance, it should schedule a call and confirm the advice in writing.
Explain the options. The firm should explain that it will respond to the subpoena by producing responsive, nonprivileged records or by raising objections where appropriate. It should not unilaterally decide to withhold records without a legal basis. If the client wants to challenge the subpoena, the firm should discuss deadlines and whether separate counsel is needed.
Communicate with the agency. The firm should acknowledge receipt, preserve the return date, and request clarification if the subpoena is overbroad. Any objection or extension request should be made in writing before the 14-day deadline. The firm should not produce records until it has completed a privilege and relevance review.
Documentation. The firm should keep a communication log with dates, recipients, and summaries; copies of the hold notices; vendor confirmations; and the client’s instructions. The log should distinguish factual statements from legal advice. If the client insists on deletion after being advised, the firm should document the refusal and consider whether it must withdraw or seek guidance.