You’ve received a letter or email threatening legal action. Now what? First, do not panic. Don’t immediately comply with the letter, get angry and write a fiery response, or destroy the letter in the hope that the issue will go away. You have many decisions to make on how to respond, and a cool head will serve you well. Although the correspondence will be unique to your situation and the CMLP cannot give you specific legal advice, here are some guidelines to help you determine your course of action.

1. Look carefully at the letter’s contents.

If a lawsuit complaint, subpoena, or other legal filing is attached, refer to our sections on Responding to Lawsuits and Responding to Subpoenas for guidance on how best to proceed.

2. Check to see who sent the letter.

If the letter has been signed by anyone but a judge or court official, in all likelihood you have been sent a “cease and desist” letter asking you to stop doing something, or to remove an item from your blog, online post, or website. Even if it is a lawyer who authored the letter, do not immediately assume that the letter has merit and that you are in the wrong. Instead: a. Determine whether the sender has specified a time by which she expects you to comply with her wishes. If you have a reasonable amount of time to respond, keep going down this checklist. If the sender expects immediate compliance, notify the sender that you received her correspondence, are taking it seriously, and need time to investigate the claims she has made. Give her a date (one providing you with a reasonable amount of time to figure out your response) when you will respond further—and keep to it. b. Keep note of when you received the letter; good record-keeping will be important in the event that the sender files a lawsuit against you. If the letter has been signed by a judge or court official, you most likely have received an order mandating some action on your part. You should immediately comply with order, as disobeying a court order can have negative repercussions. After complying with the order, you have three choices: do nothing more, appeal the order, or, if a hearing is scheduled, prepare for the upcoming hearing in which you will have an opportunity to be heard and to present evidence. Refer to our sections on Responding to Lawsuits and Finding Legal Help in order to decide which choice is best for you.

3. Review the substance of the letter or email.

See if the sender has clearly explained the legal basis for her arguments that you need to stop the activity described. Other sections of our legal guide, especially the Risks Associated with Publication and Intellectual Property sections, may help you understand the terms used in the correspondence. If the sender does not provide a legal basis for her claims or if you are unable to understand what it is she is saying, you should request clarification.

Determine what law the sender is using to support her arguments. If the law is from a country that’s different from the one you reside or work in, it likely does not apply to you. However, given that such determinations often involve complex legal analysis, you may want to check with a lawyer to ensure this is the case before disregarding the letter. If you’re wrong, your response, or lack thereof, may work to the sender’s advantage should she bring a lawsuit against you. Refer to our section on Finding Legal Help for resources to use in making this determination.

Determine whether the letter relates to material posted on the site by a user.

• If the letter demands that you remove or "take down" content in a user post on your site because the material is copyrighted by someone else, refer to the section on Protecting Yourself Against Copyright Claims.

• If the letter demands that you remove material in a user post because the material is defamatory, private, misappropriated, or negligent, you are likely to be immune from liability under section 230 of the Communications Decency Act. See our Primer on CDA 230 for more on this subject.

• If the above does not apply, or if the material was posted by you or your colleagues rather than by a user, you will need to respond differently as outlined below.

4. Review the situation and the facts

Once you have a sense of why the correspondence was sent, write down everything you know about the situation, including: when you received the correspondence, the nature of your actions that triggered the sender’s letter, and any relevant interactions you’ve had with the sender. However, if the sender sues you for not complying with her letter, you may have to provide this summary, so keep to the facts only and don’t include your opinions about the situation. The act of making the summary is valuable for you to evaluate your position and figure out your next steps because everything is fresh in your mind and later you may forget certain events; it will also help to focus your conversation with a lawyer (should you wish to consult with one) or be a good starting point for your own legal research; and finally, as you write, you may start to get a sense of the claim’s validity.

5. Determine how best to proceed.

In the course of your research and fact gathering, you will probably come to one of three conclusions:

The law protects your activity: Go ahead and draft a letter or email back to the sender explaining why you think your actions are appropriate. Stand your ground, but be polite as abrasive language is likely to result in inflaming the recipient and making the situation worse. Explain to the threatening party that you will be adding the sender’s letter or email to the CMLP Legal Threats Database--and do so! It often helps to ask someone you trust to review and edit your letter before you send it.

The law does not protect your activity: If you determine that your activity is not legally defensible, stop it immediately and do not wait for the sender to file a lawsuit against you. In many cases, if you do not cease the activity you may be found to have “knowingly” or “willfully” violated the sender’s rights, which will likely result in larger damages or penalties. Do not ignore the threat on the assumption that no one would sue you because you don't have a lot of financial assets, as recent changes to bankruptcy laws may leave you vulnerable. Oftentimes, acquiescing to a legitimate request will make the threat go away. However, if the sender demands payment of some kind, we strongly advise you to review the section on Finding Legal Help.

You just can’t tell what the law says: Don't be surprised if you are unable to determine what course of action to take. If you have already requested clarification from the sender and are still unable to determine whether their legal claims are valid, you should review the section on Finding Legal Help for additional guidance.

6. Consider whether you should notify your insurance company that you have received a legal threat.

You may be covered by insurance if you are found to be financially liable for your online activities. Consult the section on Insurance for more information.

7. Add the sender’s letter or email to the CMLP Legal Threats Database.

This is an important action because creating an entry in the Legal Threats Database will help others who receive similar letters know that they are not alone and assist them in weighing their options regarding how to respond. You will also allow the CMLP to track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

 

Being on the receiving end of a lawsuit is not a pleasant experience, but you cannot afford to let your emotions dictate your actions. This is not the time to fire off incendiary emails to others about the lawsuit nor should you contact the person who has brought the suit against you. Your goal at this point should be to thoroughly understand your position and gather all the information you can.

Go through the checklist on this page to better understand the process in front of you. But first, there are two technical terms that you will need to become fluent with right away: for purposes of the lawsuit, the person who sued you is called the plaintiff, while you are known as the defendant.

1. Do you have a lawsuit on your hands?

It's important that you understand the papers you've received. While the following is not definitive, most lawsuits contain the following attributes:

• a court location is listed at the top of the first page, i.e. the "United States District Court for the Northern District of California" or the "State of Rhode Island, Providence, S.C., Superior Court"
• two columns right after the heading which are separated by a vertical line made of ")" or ":" characters.
• your name in the left column, listed after the "v."
• the word "Complaint", or "Petition" in the right column or in the title immediately following the end of the two columns.

Examples of lawsuit complaints:  Mayhew Complaint, Ronson Complaint, and Pivar Complaint.

If none of these features are present you may be in possession of a different type of legal document—check our sections on Responding to Correspondence Threatening Legal Action and Responding to Subpoenas for help in determining what you received.

If the features described above apply, you have received a complaint, which is a legal document initiating a legal action and explaining the reason for the lawsuit. Accompanying the complaint should be a summons, a legal document from the clerk of the court where the complaint has been filed. A summons lets you know that the plaintiff has brought a lawsuit against you, and also gives you a date by which you need to file an answer or other response. An answer is your response to the complaint: whether you agree with the facts stated in the complaint and/or whether you think the complaint is invalid for procedural reasons.

Highlight, circle, and underline your response date—you will not want to miss the deadline for filing your response or else the court may accept everything that the plaintiff has asserted in her complaint as true and then rule against you.

If no summons accompanies the complaint, call the clerk of the court listed in the complaint, and find out whether the plaintiff actually filed it. If the complaint has not been filed, you should not set the documents aside because the fact that the sender has taken the time to prepare a draft complaint shows that she takes the situation seriously. However, lawyers sometimes send legal-styled documents to confuse and intimidate a defendant into acquiescing to their demands. Keep reading this section to prepare for the possibility of a lawsuit.

2. Did you properly receive the complaint and summons?

If you have received both a complaint and a summons, then the plaintiff has initiated a lawsuit against you. Since both documents signal the beginning of the lawsuit, the law requires that you receive (are served) both these documents in specified ways. It is important that you check to see what the relevant requirements are for proper service in your jurisdiction.

To do so, you'll need to first find out what kind of court issued the summons. If the title contains the words "United States District Court", then you have been sued in federal court. On the other hand, if title contains the name of a state, (for example: Commonwealth of Pennsylvania) and does not contain the words "United States District Court", you have been sued in state court. It is beyond the scope of this guide to cover all of the requirements for service. If you think you might not have been properly served, you can:

• call / visit the civil clerk's office of the court to ask about the requirements
• go to your local court library
• search online for the information (check the court's website first)
• contact a lawyer; see the section on Finding Legal Help

If you do not believe that you were served in the proper way, you need to inform the court about the reasons why in your answer. You will receive a notice giving you a date to appear in court and further explain your reasons, and your case should be dismissed. If you don't inform the court on that date about the improper service both in your answer and at your hearing, you could be barred from bringing it up at a later point and getting the case dismissed.

3. Don't destroy documents!

Do not delete or otherwise destroy any blog posts, emails, documents, backups, or other documents--whether in paper or electronic form--that may be relevant to the lawsuit. Courts do not look kindly upon such actions and the destruction of important documents could be fatal to your case. Besides, you may find these documents useful in preparing your defense.

4. Consider notifying your insurance company

You may be covered by insurance if you are found to be financially liable for your online activities. Consult the section on Insurance for more information.

5. Determine whether the court can hear your case

You live in Atlanta, Georgia, the plaintiff lives in Sacramento, California, and the lawsuit has been filed in Dane County, Wisconsin. Does a court in Wisconsin have authority over you? A lot of ink has been spilled concerning a court's reach or jurisdiction to hear a case. Broadly speaking, our legal system divides the question into whether a court has personal jurisdiction, which is the authority over the plaintiff and defendant, and whether a court has subject matter jurisdiction, which is the authority to decide the issues presented in the lawsuit. Questions concerning jurisdiction can get very complicated and are beyond the scope of this guide. If you've been sued in another state or country, you may want to hire a lawyer to examine the jurisdictional issue.

6. Gather your information

Organization is key to the litigation process. You should keep a file containing all the documents related to the lawsuit including printouts of any relevant emails and webpages. Additionally, note dates and times for each document in the file.

The complaint should outline the claims the plaintiff has brought against you. Typically the claims will be set forth in the titles of sections of the complaint, but sometimes they are buried. Familiarize yourself with the language used in the complaint and use the other sections of this guide, especially the sections on Risks Associated with Publication and Intellectual Property, to understand the reasons for the lawsuit.

Next, write down everything you know about the situation, including: when you received the correspondence, the nature of the actions that triggered the lawsuit, and any relevant interactions you’ve had with the plaintiff. The act of writing the summary allows you to evaluate your position and figure out your next steps because everything is fresh in your mind and later you may forget certain events; it will also help to focus your conversation with a lawyer (should you wish to consult with one) or be a good starting point for your own legal research; and finally, as you write, you may start to get a sense of the lawsuit's validity.

You should know that the plaintiff may request a copy of the summary, but the law will likely protect you from having to give it to her. However, as there are rare instances in which you may need to provide it, keep to the facts only and do not include your opinions about the situation.

The complaint portrays the plaintiff's side of the story; the answer should portray yours. Go through the complaint and write out each fact alleged by the plaintiff. Now, rewrite the facts using your words. Do you dispute how the plaintiff has characterized certain events or omitted others?

7. Decide how to respond

At this point, you should decide whether you want to represent yourself or hire a lawyer. If you have in fact been sued, you will invariably be better off if you hire a lawyer. Refer to our section on Finding Legal Help for more help on this issue.

• If you choose a lawyer, provide her with the file of all the documents related to your case, your summary, and your rewritten version of the facts. However, do not simply hand off your case and cease to work on it. Keep up with your own research about the legal process as you will still have important decisions to make—remember your lawyer works for you and that you should still be in control of how you want to proceed.

• If you want to represent yourself, your next step should be to research and write your answer. While we cannot provide you with legal guidance on how to construct your answer, the following points may be helpful:
  
  
  • Visit your local court library and find forms or templates for help in constructing your answer.
  • Research how to present your arguments to the court in writing. You will likely have to use cases and statutes to support your positions.
  • Your rewritten facts should be helpful as a jumping off point.
  • Part of your answer will be to list of any defenses you believe apply to your case. A defense is a legal position that may limit your accountability, or even allow you to escape the lawsuit altogether--even if the facts of the plaintiff's complaint are true. An example of a substantive defense is the Fair Use doctrine in response to a claim of copyright infringement. An example of a procedural defense is that the court has no jurisdiction over you.
  • Be sure to keep to the style guidelines specific to the court where you will file your answer.

8. Add the information about the lawsuit to the CMLP Legal Threats Database

This is an important action because creating an entry in the Legal Threats Database will help others who receive similar lawsuits know that they are not alone and assist them in weighing their options regarding how to respond. You will also allow the CMLP to track who is sending legal threats and make it possible for our lawyers to help others in a similar position.

 

You've received a document that might be a subpoena. Your immediate reaction may be shock and a desire to immediately obey its request. As with anything legal, it's best not to act on impulse but to carefully consider the options before you. While you will likely need to comply, there are times when a court will agree to modify the subpoena's request or even to terminate it entirely. This guide cannot give you legal advice about your situation and you should contact a lawyer for specific legal advice. However, this section should be able to answer the preliminary questions you may have about how best to respond.

1. What is a subpoena?

A subpoena is a legal order commanding the person or organization named in the subpoena to give sworn testimony at a specified time and place about a matter concerned in an investigation or a legal proceeding, such as a trial. A subpoena duces tecum substitutes the requirement of your appearance to testify with a requirement that you supply specific physical material in your possession. A deposition subpoena means that your sworn testimony will be taken during a phase of the trial process known as discovery, and will likely occur at a lawyer's office.

Subpoenas may be issued by the following people involved in the legal case associated with the subpoena:

• the judge presiding over the legal proceedings
• the clerk of the court where the lawsuit has been filed
• a private lawyer representing one of the parties in the lawsuit
• a government lawyer such as the Attorney General or District Attorney

(Note that the Attorney General and District Attorney can issue a subpoena during an investigation, before initiating a legal case).

Given that a subpoena is an order to produce yourself and/or tangible items in a very specific legal setting, it is imperative that you take it seriously. Failure to comply with a subpoena can have serious consequences. However, you do have certain options in how best to respond.

2. Did you receive a subpoena?

You'll first want to determine precisely what you've received. In some instances, law enforcement authorities will use a search warrant, rather than a subpoena duces tecum, to access material in your possession. If you have been served with a search warrant, you cannot interfere with the search. You should call a lawyer immediately, note the scope of the search, watch and document where the authorities performed their search, and keep a record of any items seized.

Subpoenas come in several flavors, and you may need someone trained in the law to help you determine what type of legal document you've received. However, a subpoena contains certain distinguishing characteristics. Look carefully at the document for:

• the full name of a court in the document's title, or letterhead
• the word "Subpoena" in bold in the top third of the document
• the words "you are commanded to report," or a similar variation
• your name
• a specific date, time and location for you to appear or for you to provide the requested materials
• in some cases, the penalty for non-compliance will be included

Examples of subpoenas:  Earthlink Subpoena, AutoAdmit Subpoena, Tice Subpoena, and IBM Subpoena.

Subpoenas are not necessarily filed with the court, so if you have doubts about the document you've received, ask a lawyer or call the person who signed the document and ask if they have in fact sent a subpoena. (An address and or telephone number should follow the signature.) If none of the above characteristics match your document, refer to our sections on Responding to Correspondence Threatening Legal Action, and Responding to Lawsuits for help figuring out what you've received.

3. Accepting a Subpoena vs. Complying with a Subpoena

Once you've determined that you have received a subpoena, you may feel that you want to contest the subpoena because you believe that it is invalid or unreasonable. You can still do so despite having received the subpoena (which in most cases arrived by registered mail, or by a person delivering it to you and requesting your signature). Acceptance of the subpoena does not constitute your assent to comply with it. However, if you object to the terms of the subpoena, then you must inform the court about your decision to challenge it.

4. Inconvenient Date & Cost of Travel

As long as you are not one of the parties in the case and you have to travel an appreciable distance, your transportation costs should be covered and you should be given an attendance fee. The costs and fees are set according to the rules of the court named in the subpoena. Generally, in a civil case you should receive the cash or check before you have to appear. After you testify in a criminal case, you should receive an attendance fee and travel reimbursement.

If appearing at the time and place specified by the subpoena is of great inconvenience, call the person who issued the subpoena, and he may be able to reschedule your appearance to a more convenient date. However, keep in mind that postponement may not be an option because a court date has been set for the trial and cannot be moved. If so, and if you would suffer extreme hardship from having to appear, consult a lawyer who may be able to help.

5. Filing an Objection to a Subpoena

The subpoena will require that you either appear, or produce documents or other material, at a specific time and location. If you want to inform the court of your objections you will need to file a Motion to Quash. Typically, a Motion to Quash contains a request to the court asking to modify or terminate the subpoena based on certain objections, and a memorandum explaining how the law supports the objections.

You should not wait until the date specified to make your objection known to the court. There are many valid reasons to object, the most common being:

• Improper service

The law requires that you receive (were "served") with the subpoena in a specified way. Requirements for service vary according to jurisdiction, and the subject is too complicated to address in this guide. You may want to consult with an attorney or perform your own legal research to understand whether service was proper. However, this is usually not a strong objection because in all likelihood you will merely be served once again.

• Scope of Request

If you believe the subpoena you've received requests information or material that would be difficult to gather, you may be able to challenge it. Should the court agree with your objections, it may nullify the subpoena. More likely, the court will limit the scope of the subpoena, set a more reasonable deadline for you to deliver the materials, and, if a voluminous amount of documents have been requested, the court may also require the other party to compensate you for making the necessary copies of each document. (Note: you should not have to create anything new for a subpoena request; the request should only be for existing material within your possession.)

It is important to note two things here: the court does not usually monitor who and what is subpoenaed, and under rules of trial procedure, a party to a lawsuit is permitted to send a subpoena to anyone he thinks might have material useful for his case. Additionally the material doesn't even have to relate to the subject of the lawsuit. A party is entitled to request materials it thinks might have the potential to lead to relevant information concerning the subject matter of the case. Thus, unsurprisingly, many subpoenas are drafted to be broad in scope, and in some cases, to have a short deadline.

• Confidential Material

If the subpoena requires that you turn over confidential documents, or testify about confidential matters, like the identity of an anonymous source, do not immediately comply with the request. The law recognizes the importance of protecting certain communications and grants them a privileged status for purposes of a lawsuit. For example:

• certain states have enacted "shield" laws protecting journalists and others from being compelled to testify about information collected during the newsgathering process, including the disclosure of anonymous sources. Refer to our section on State Shield Laws to see whether your state has this law.
• both state and federal law prevents certain professionals, like doctors and lawyers, from being forced to testify or submit documents about their patients or clients.
• both state and federal law grant close relatives immunity from testifying in certain situations.

Because these protections vary according to each jurisdiction you will need to consult a lawyer, or perform your own legal research, to see whether any apply to your situation.

• Self-incrimination

The Fifth Amendment of the U.S. Constitution protects an individual from being forced to testify against himself when such testimony could result in criminal liability.

In some cases, law enforcement authorities use a subpoena to a build a case against the subpoena recipient before pressing charges. If you think that you may be the focus of a criminal investigation, or worry about incriminating yourself when you testify, do not comply with the subpoena without first consulting a lawyer.

6. Hiring a Lawyer

If you haven't already made a decision at this point, you should decide whether you want to hire a lawyer. If the request is straightforward and you're comfortable with supplying the requested information, you may not need a lawyer's services. However, you will almost always be better off having a lawyer protecting your interests, even if you think you have nothing to hide. You may mischaracterize a situation and make yourself vulnerable to a lawsuit or criminal charges, and if so, will find it hard to rebut the testimony given under oath. Refer to our section on Finding Legal Help for more help.

Before contacting a lawyer, write down everything you know about the situation, including: when and how you received the subpoena, the nature of the actions that triggered the subpoena, and any relevant interactions you’ve had with either party of the lawsuit. The act of writing the summary allows you to:

• record events you may later forget
• evaluate your position and figure out your next steps
• focus your conversation with a lawyer (should you wish to consult with one)
• launch your own legal research
• potentially determine the subpoena's validity

7. Adding your subpoena to the CMLP Legal Threats Database

This is an important action because creating an entry in the Legal Threats Database will help others who receive similar subpoenas know that they are not alone, and assist them in weighing their options regarding how to respond. You will also help the CMLP track who is sending legal threats and make it possible for our lawyers to help others in a similar position.