Document Subpoenas: How Much You Actually Have to Turn Over.

A grand jury subpoena duces tecum is the document-production form of a federal grand jury subpoena. Along with your testimony, a grand jury subpoena duces tecum will require you to produce certain materials.

Along with its specific demands, a grand jury subpoena duces tecum will also include a description of the responsive materials it requires you to produce. “Responsive materials” are those that meet the criteria of the description and are in your possession, custody, or control. While there is no single definition of what this includes in all cases, items that you or your company has stored offsite or with a document storage company, items you have digitally in the cloud, and documents you have the legal right or practical ability to procure are generally covered.

Many subpoena-responsive materials may be privileged under the Fifth Amendment or other federal rules. Such materials may be withheld if and only if a valid objection is timely and properly filed. Overproducing the contents of your business or personal records is generally not in your interest, and preserving valid privilege objections is imperative to ensuring that your (or your business’s) records are not improperly disclosed to the government.

Production is limited to only the categories and date ranges that the subpoena requests. A grand jury subpoena does not create an affirmative obligation to produce documents or data outside the categories and date ranges it specifies. Within those categories, however, responsive materials must be produced regardless of where they are physically kept, including records held offsite, with a document storage vendor, or in the cloud, so long as you have the legal right or practical ability to obtain them.

Failure to be able to fully satisfy any single category of materials on the grand jury subpoena does not excuse production under other categories. An inability to be fully responsive is not a basis for resisting production in any case.

How Do I Determine Which Documents Are Responsive?

A Focus on Responsiveness Rather Than Relevance

While an experienced grand jury subpoena defense lawyer will call this the distinction between responsiveness and relevance, the legal reality of it is that it is the difference between documents you are required to produce and documents you are required to produce based on the grand jury subpoena’s requests. When facing grand jury subpoena, this is a critical distinction, particularly when reviewing documents and data for responsiveness. The goal of compliance is to provide only the responsive documents the subpoena demands, which could be more or less than your assessment of relevant documents.

Overproducing documents can open the door to investigators finding evidence of crimes that were not the focus of the subpoena, or evidence that you would be entitled to withhold if it was not sought. Once produced to the government, generally, it will not matter if you have the documents’ retrieval in your possession or control. While there are specific rules for federal prosecutors and other investigators to return documents once it becomes clear they are not being useful, these rules generally do not apply in practice.

The goal of thorough document review is to separate documents and records in your possession or control into three categories: responsive, privileged, and nonresponsive. If the document is responsive but not privileged, you must produce it under a grand jury subpoena.

If the document is responsive and you think it does not help the investigators’ efforts, remember that the investigator’s determination is what will stand. You cannot decide to withhold responsive documents simply because you believe the documents do not assist the grand jury’s efforts. If you believe the investigators’ efforts are a fishing expedition or that their assessment of relevance is improper, you cannot simply keep what you think are the unhelpful records. This is another area where you need a proper objection.

If you think that responsive, nonprivileged documents are “too incriminating” for you to produce under a grand jury subpoena, you may still be required to produce the documents in this scenario. Again, the determining factor is your ability to produce a nonprivileged, responsive document (unless the document was not in your possession or control), regardless of whether you believe it will help the government’s case or not.

If you are unsure about the content of the documents in your possession, an experienced grand jury subpoena defense lawyer can assist in making the determinations that are necessary.

Can I Produce Summaries of Documents in Response to a Grand Jury Subpoena?

Along with the general rule that you may not withhold records or documents that are in your possession or control and responsive to a grand jury subpoena, the rule is that you are generally required to produce records that exist as-is. Producing summaries will generally do not fall within the scope of your required disclosures.

In general, Federal Rule of Criminal Procedure 17(c) does not require the production of newly compiled summaries, records, or reports. In order to be deemed records or documents within your possession, custody, or control, the documents must be compiled in their existing form, and you must be required to produce them as they exist and are currently stored. Generally you will need to provide records as they currently exist. The Fifth Amendment act-of-production doctrine does not change this; it is a basis for resisting or limiting a compelled production, not a basis for creating new records.

What Counts as Possession, Custody, or Control?

What Counts as “Control” under a Grand Jury Subpoena?

Within the context of a grand jury subpoena, “control” refers to the legal right (or practical ability) to obtain records or documents from a third party. The common examples are:

• Banking records and account records
• Social media account records
• Emails and other forms of digital communications
• Other business records

Are Business Records in My Possession or Control?

When facing a grand jury subpoena in a corporate or business matter, determining ownership will often be the most important (and sometimes most difficult) task. While these records may reflect your work and your involvement in a business entity, these records may belong to the entity itself, and you may not have an obligation to respond to the subpoena unless you have “control” of these records. An experienced grand jury subpoena defense attorney can explain how this distinction may affect your obligations.

When it comes to business records, “possession” is generally not a relevant factor. This is because entities do not “possess” records in the same sense that individuals do; entities only have records that are created through their business practices. Instead, this is why the concept of “control” is so important. For instance, business records can exist in cloud-based storage or in personal email or messaging accounts. This is because these are the methods by which employees and affiliated parties do business.

Does My Ownership of a Personal Computer or Phone Make the Records on it My Personal Records?

Generally, just because you own the computer or phone used to facilitate your business does not mean the records created using these devices are your records. When business communications occur via electronic devices, suchs documents will be considered business records as a result of the purposes for which these communications were created.

If I Am Affiliated with a Company, Do I Also Have Control Over the Company’s Records?

An affiliation does not automatically give you control over a company’s records. If you are an officer, board member, or otherwise associated with a company, you may not automatically possess the same level of control over the company’s records as the entity’s own legal and IT departments. An experienced grand jury subpoena defense lawyer can help you determine whether you have control over the company’s records that would be subject to a grand jury subpoena.

Todd Spodek and the attorneys at Spodek Law Group handle federal cases of this kind from New York, Brooklyn, Queens and Los Angeles.

How Should I Collect and Produce Electronic Records?

Step 1: Execute a Preservation Hold

A preservation hold should identify:

• Relevant custodians, systems, and locations
• Relevant documents and communications
• Relevant dates

Step 2: Suspend Auto-Delete Settings

If relevant information is subject to auto-deletion (e.g., email or text messages), these settings must be suspended immediately. Relevant documents and other records are needed in order to fully satisfy the response, and this requires ensuring that everything relevant and responsive is preserved.

Step 3: Collect with Preservation of Metadata

When collecting electronic records and documents, metadata should be preserved in accordance with the requirements under the subpoena’s production specifications. This is a particularly important (yet often overlooked) aspect of collection that can have significant implications for ensuring a compliant response.

Step 4: Maintain Collection Logs

Maintaining a collection log during the collection process is recommended. A collection log should identify what has been collected from whom, when, and where. This includes recording the custodians who have the data, where the data is stored, what searches were conducted, and when the data was collected.

Along with recording the data’s contents, the collection log should record whether any relevant records may have been missing (and, if so, why).

Step 5: Utilize an Independent Collection Entity

A collection undertaken by an independent entity is generally recommended, rather than utilizing interested employees to self-identify and collect relevant records. This is because independent entities can help with a streamlined process and mitigate the risk of an improper response (whether by accident or on purpose).

Step 6: Resolve Production Specification Questions

All questions related to production format and any applicable metadata requirements should be resolved prior to the final collection. This is because you only need to collect the electronic records and documents that the grand jury subpoena demands and then produce these records (or copies of these records) in the format and style required.

Step 7: Production Preparation

Rule 17(c) does not in itself require Bates numbering or load files. However, most investigators will expect both of these documents in the format that they prefer for their review. The format should be specified in the production specification.

Step 8: Production and Delivery

If you are producing records from an entire account (e.g., email account), you may need to perform a secondary review prior to production. The record or the account may contain nonresponsive materials that should not be turned over to the investigator. In these instances, you will need to identify all relevant records and documents from the account and, then, produce those and only those records.

Can I Withhold Privileged or Incriminating Documents?

Attorney-Client Privilege

The attorney-client privilege protects confidential communications between a client and their attorney. This includes written records of such communications; however, other forms of communication may not be covered by this privilege. You should discuss these communications and your obligations with your grand jury subpoena defense attorney.

Work-Product Doctrine

The work-product doctrine generally protects documents and other materials created in anticipation of litigation. However, these records and documents must be created by an attorney or in response to an attorney’s request. An experienced grand jury subpoena defense attorney can help determine what qualifies as work product and what does not.

The Fifth Amendment (U.S. Constitution)

The Fifth Amendment protects you from being compelled to be a witness against yourself in a criminal case. This includes being compelled to testify against yourself during a grand jury inquiry, and it includes protecting documents you were previously compelled to gather for trial. However, it typically does not apply to documents voluntarily created.

The U.S. Supreme Court held that the Fifth Amendment does not protect documents voluntarily created by an individual, as the Fifth Amendment only protects individuals from “witnessing against themselves.” This makes the production of records and documents a difficult (though important) issue during the grand jury process.

A related concept is the act-of-production privilege, which protects some compelled productions of documents and materials. While asserting this privilege presents a significant risk for individuals, there is also the risk of inadvertently waiving it.

Producing Documents May Constitute Admission

When you produce documents from your possession, custody, or control (with the exceptions discussed above), this can, but will not necessarily, be interpreted as an admission of possession, custody, control, and authenticity. It is important to speak with an experienced grand jury subpoena defense lawyer who can discuss these issues with you.

Are the Incriminating Records a Problem for Me or My Company?

The Fifth Amendment protects individuals from self-incrimination. While this applies to the acts, activities, statements, and communications that individuals generate, this privilege does not apply to corporations or other business entities.

In the case of Braswell v. United States, the Supreme Court held that a corporate custodian cannot assert the act-of-production privilege in response to a grand jury subpoena requesting corporate documents. As a result, when corporations have records and documents in their custody that could have incriminating effect for the company, there is little that can be done to prevent their production (unless the records are privileged).

How Do I Withhold Privileged Information?

Typically, when faced with a grand jury subpoena duces tecum, companies will not silently omit documents. Instead, they will typically maintain a log listing which documents have been withheld and the reason why. This is important because the grand jury can then determine if the information truly is privileged.

What if the Grand Jury Subpoena’s Return Date Is Quickly Approaching?

What Is the Danger of Withholding Records or Documents From a Grand Jury Subpoena?

The risk of withholding records and documents that are due in response to a grand jury subpoena is that you can be held in contempt of court. Under Federal Rule of Criminal Procedure 17(g) it says: “The court may adjudge a person in contempt of court for refusing to comply with a subpoena.” If you cannot justify withholding these documents in court, then the penalties for contempt can be severe.

A successful grand jury subpoena defense can involve narrowing the categories of documents and records demanded in a subpoena, obtaining an extension of time for production, and agreeing on search terms and date ranges that will not require an all-encompassing (and expensive) review of all files in a company’s (or individual’s) custody, possession, or control.

When Should I File a Motion to Quash or Another Motion Under Rule 17(c)?

All motions to quash, motions for protection, and other motions under Rule 17(c) should be filed on or before the subpoena return date. Failing to do so runs the risk of a court deeming an objection forfeited, and you need a record of filing your objection in order to avoid this risk. If you are facing a grand jury subpoena, call our experienced defense team.

If I File a Written Objection, Does This Stop the Grand Jury’s Deadlines?

Generally, while a written objection does not stop the deadline for federal grand jury subpoena compliance, a written objection does signal the need for relief by the court or the prosecutor. But until a court or prosecutor grants the relief, the obligation to comply remains.

This applies even if you have received a grand jury subpoena’s return date and agreed to provide documents on a rolling basis. Unless you have an agreed extension or a court granting relief, this does not alter your obligations.

If your objection has not yet been resolved, this does not mean you can unilaterally noncomply with the requirements of a grand jury subpoena past the return date. If your objection has not yet been resolved by the court or by the prosecutor, then you must still provide all responsive, nonprivileged records that you are obligated to produce under Rule 17(c) by the return date.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.