Challenging a Grand Jury Subpoena in Federal Court.

Rule 17(c)(2) states: “The court may quash or modify the subpoena if compliance would be unreasonable or oppressive.”

Although this is the clear language of the Federal Rules of Criminal Procedure (which apply in federal grand jury proceedings), quashing a federal grand jury subpoena remains difficult. The U.S. Supreme Court has held that “Subpoenas of a grand jury proceeding are presumed regular on their face, and the burden is on the party resisting compliance to show that the subpoenas are, in fact, unreasonable or oppressive.” United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991).

Given the high bar for quashing or modifying federal grand jury subpoenas, parties seeking to avoid production or testimony should promptly and specifically object to the subpoena in question. This is consistent with Rule 17(c)(2)’s provision that “A motion to quash or modify a subpoena must be made promptly.” It is also consistent with the U.S. Supreme Court’s recognition of the necessity of conducting “the business of the grand jury” with “dispatch.Importantly, a party seeking to quash or modify a federal grand jury subpoena cannot safely ignore it while its objections are pending. The subpoena compels production and/or testimony unless and until quashed or modified by court order. As a result, the proper course of action when deciding whether to object to a subpoena is, necessarily, to consider objections that can narrow the scope of compliance, if not defeat the subpoena entirely.

Notably, grand jury subpoenas ordinarily issue without the prior approval of a judge. For that reason, grand jury subpoenas do not require a showing of probable cause. This difference does not exempt the government from Rule 17(c)(2), however. Even when the government’s subpoena is otherwise enforceable, compliance should not be required if “compliance would be unreasonable or oppressive.”

The federal grand jury in most federal criminal cases contains 16 to 23 jurors. At least 12 of these grand jurors must vote for the federal grand jury to return an indictment charging the defendant with criminal violations. This concurrence requirement is comparable to the supermajority rules used in many state grand jury systems, and federal grand juries return an indictment in the overwhelming majority of cases presented to them.

What Legal Grounds Can Defeat or Narrow a Federal Grand Jury Subpoena?

As discussed above, if you are looking to quash or modify your federal grand jury subpoena, the burden is yours. This comes from the U.S. District Court for the Eastern District of Missouri’s ruling in United States v. R. Enterprises, Inc., 498 U.S. 292, 301 (1991):

“Subpoenas of a grand jury proceeding are presumed regular on their face, and the burden is on the party resisting compliance to show that the subpoenas are, in fact, unreasonable or oppressive.”

Under R. Enterprises, for a subpoena to be unreasonable or oppressive, there must be “no reasonable possibility that the requested records are relevant to the criminal investigation,” in which case “the court should quash the subpoena.” If there is a reasonable possibility of relevance, then “the subpoena does not appear to be unreasonable or oppressive.”

If you are served with a federal grand jury subpoena for records, a key question to consider is whether the subpoena “describe[s] the items demanded with particularity.If not, you may be able to quash the subpoena for particularity. However, even if you can raise particularity concerns, the court “may allow the government to amend the subpoena” or “may modify the subpoena to narrowly tailor the scope of the demands so that it is reasonable to comply.” Id. While the grand jury subpoena may not be quashed entirely, this gives you an important opportunity to narrow the scope of the subpoena and potentially avoid the consequences you are worried about.

Are There Other Grounds for Defeating or Narrowing a Federal Grand Jury Subpoena?

Yes, although you will need evidence of these grounds that go beyond the language of your federal grand jury subpoena. Two potential grounds for quashing a federal grand jury subpoena that could be considered include,

(i) improper purpose. This includes cases in which the grand jury subpoena is issued primarily to obtain evidence for a civil case, and the subpoenas are “not being used for a purpose for which they were designed, and there exists no reason to believe that the grand jury is being used to conduct a criminal investigation that is legitimate.” United States v. Williams, 521 F. App’x 510, 512 (11th Cir. 2014).

If a particularity issue is present, i.e., the subpoena “demands ‘all documents’ pertaining to the individual’s entire employment history”, then the court may narrow “the scope of the records that need be produced.” Id. At this point, this takes the conversation into the topic of particularity again, though, as the issue is that the particularity problem presents an argument for narrowing the scope of the federal grand jury subpoena.

Another example of a federal grand jury subpoena that was quashed by a federal court was in United States v. Woods. In this case, however, the federal grand jury subpoena was issued after the government had already secured the federal grand jury’s indictment. The U.S. Court of Appeals for the Second Circuit determined that “the subpoena was issued after the indictment and the government is not entitled to use a grand jury subpoena to prepare its case for trial.” United States v. Woods, 544 F.2d 242, 250 (6th Cir. 1976).

How Do You Prove That Compliance with a Federal Grand Jury Subpoena Is Unduly Burdensome?

The determination of whether compliance is “unduly burdensome” will depend, in part, on your resources. As a result, part of deciding whether to object to your federal grand jury subpoena is determining whether the burden of compliance is truly, and reasonably, undue in light of your resources.

If the burden is truly undue, you may be able to work with the Assistant United States Attorney (AUSA) who issued the subpoena to resolve your concerns. This can involve agreeing to narrow categories of records, date ranges, and deadlines.

When you file a motion to quash or modify a federal grand jury subpoena on undue-burden grounds, conclusory assertions that the subpoena is “unduly burdensome” (or otherwise “unreasonable or oppressive”) will not be sufficient to carry your burden of showing that compliance would be unreasonable or oppressive. Instead, you must support your undue-burden objection with specific evidence. If you do not have specific evidence to support your undue-burden objection, you may be better off seeking to narrow the subpoena on other grounds.

One way to support an undue-burden objection is through the use of a declaration. This declaration should quantify the number of custodians involved, the amount of Electronically-Stored Information (ESI) involved, any anticipated vendor expenses, and any anticipated disruption to your normal business operations. Along with proposing an alternative narrower scope for compliance, this is an effective way to show the court why the original demand is unreasonably burdensome.

Along with the authority to quash or modify a federal grand jury subpoena on the grounds that compliance is unduly burdensome, Rule 17(c)(2) provides only that “On motion made promptly, the court may quash or modify the subpoena if compliance would be unreasonable or oppressive,” so a court’s ability to attach conditions to compliance flows from its power to modify the subpoena rather than from any express language. As a result, even if the court refuses to quash or modify a federal grand jury subpoena on the grounds that compliance is unduly burdensome, you may still be able to compel the government to reimburse you for the reasonable costs of compliance.

The reasonableness of the government’s demand is determined in light of the fact that the government is entitled to the evidence it needs to prosecute its case without paying the witness’s costs. The best you may be able to do in some cases is to show that the government must pay for vendor costs to recover ESI, which is a reasonable request.

Can you quash or modify a federal grand jury subpoena because the records are stored abroad? A recipient can be compelled to produce records stored abroad, provided that the recipient has possession or control. If you have the record abroad, the record is still deemed to be in your possession or control, and you will have the burden of complying with a valid subpoena issued by a federal grand jury.

How Do You File Promptly and Preserve Every Objection?

While filing motions to quash, modify, or compel compliance with federal grand jury subpoenas is a common part of federal grand jury practice, these motions must be filed and processed with diligence. The return date stated in your subpoena typically controls the timing for filing any objections, but you will need to quickly evaluate the subpoena and determine which objections are available. While challenging a subpoena for any of the grounds discussed above can take time, it is important to address any objections immediately so that the government cannot seek sanctions or a contempt order against you if time for compliance expires before the court determines the scope of your compliance obligations.

When challenging your federal grand jury subpoena, you will need to pay particular attention to the following factors:

• Challenges to a federal grand jury subpoena are filed in the district court in which the grand jury is sitting.
• District local rules often apply to the administrative procedures of challenging grand jury subpoenas. This includes rules concerning the type of caption used in the motion, whether the motion must be filed under seal, a motion for leave to file electronically, the form of service to be used, and any other rules that are exclusive to motions relating to grand jury subpoenas.
• When challenging a federal grand jury subpoena, it is generally necessary to file the motion and any other supporting documents under seal. This is required under Federal Rule of Criminal Procedure 6(e)(6), which requires that records, orders, and subpoenas relating to grand-jury proceedings be kept under seal to the extent and as long as necessary to prevent the unauthorized disclosure of a matter occurring before a grand jury. While the public does not have the right to examine these filings, the parties may, “as necessary to prevent unauthorized disclosure,” include sealed copies of the subpoena and any other grand jury documents with any filing challenging the subpoena.
• Filing a motion to quash, modify, or seek reconsideration in any federal grand jury subpoena challenge does not suspend the subpoena’s return date. If you are seeking to avoid the consequences of non-compliance, you must seek to have the court order a stay of compliance pending the resolution of the motion. The stay may also include an appeal of the court’s decision.

You may also have the opportunity to discuss the subpoena informally with the Assistant United States Attorney (AUSA) who issued it. Again, however, this must not be confused with agreeing to an extension of the return date. The AUSA will not, typically, agree to an extension of the return date without some form of written documentation, and even then, the AUSA will expect a production of documents or testimony by the date and time agreed upon. As a result, it is important to ensure that you have clear, written agreements with the government that establish:

• a revised deadline for compliance with the return date, or any deadline for rolling production, if applicable;
• the date, time, location, and method of the production of records; and
• reservations of your right to raise objections to the return of responsive records, as well as any right to challenge any order quashing, modifying, or compelling compliance with the subpoena.

As our experienced federal criminal defense team is aware, obtaining a clear, written agreement with the government is important for ensuring that you will not inadvertently face consequences for non-compliance while attempting to resolve your federal 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.

Who Can Challenge a Federal Grand Jury Subpoena, and Must a Subpoenaed Witness Appear?

What are Subpoena ad Testificandum and Subpoena Duces Tecum?

A federal grand jury subpoena can be in one of two forms: a subpoena ad testificandum, and a subpoena duces tecum. The subpoena ad testificandum commands a witness to appear and testify before the grand jury on a specific date, while the subpoena duces tecum commands a witness to produce either documents or tangible evidence in their possession or control.

May the Defense Counsel Be Present for the Grand Jury?

Generally, no. Under Federal Rule of Criminal Procedure 6(d), which lists the only persons who may be present while the grand jury is in session, “A lawyer is not entitled to be present during grand jury proceedings.” However, witnesses, who may be compelled to testify under subpoenas issued by the court or the prosecutor, have the right “to leave the room at any time to consult with his lawyer.”

How Can a Subpoenaed Witness Object to the Obligation Imposed?

A subpoenaed witness is generally entitled to challenge the obligations imposed by a federal grand jury subpoena, but this depends on how they received the subpoena. If the subpoena was issued directly to the witness, then the witness may challenge the obligations by filing a motion to quash or modify. If the subpoena was issued to a third party, a challenge generally can be raised only if the witness has a personal right or privilege at issue.

Must a Subpoenaed Witness Attend and testify?

A subpoenaed witness generally must appear and testify unless the witness has established a legal ground for not appearing or testifying at the grand jury, or invokes the witness’s fifth amendment privilege against self-incrimination. Generally, this latter privilege must be asserted question-by-question, although there are exceptions.

What Are the Different Grand Jury Designations?

The Department of Justice (DOJ) categorizes individuals in grand jury proceedings into three categories, based on their perceived role:

(i) Witness. A witness is an individual whom the DOJ does not believe has been involved in criminal activity.

(ii) Subject. A subject is an individual whom the DOJ believes may be involved in criminal activity, but whom the DOJ does not yet believe can be indicted.

(iii) Target. A target is an individual whom the DOJ believes can be indicted.

How Should Privilege and Fifth Amendment Objections Be Raised?

Attorney-client privilege protects confidential communications between a client and their attorney. This privilege is not limited to communications between a client and an attorney. It also covers communications made by clients’ representatives and agents with their attorney, provided that the attorney was retained to represent the client. The privilege protects communications made with the purpose of obtaining legal advice, and it protects the attorney’s mental impressions as well as the identity of the attorney’s sources.

Attorney work-product privilege prohibits the government from compelling disclosure of materials prepared in anticipation of litigation. This includes documents, summaries, notes, reports, or other materials created by the attorney or attorney’s agents.

A blanket privilege objection that attempts to shield the contents of an entire production cannot generally be sustained. Instead, if a witness will not provide the production in its entirety, the witness will generally need to provide a portion of the requested information while withholding what it needs to based on attorney-client privilege or attorney work-product privilege. When withholding specific records, a privilege log identifies each record that will be withheld and the privilege (or privileges) asserted over each record.

Production of a document can result in an admission of the document’s existence, possession, and authenticity. This constitutes a “transactional” disclosure separate from the content of the record. If any transactional disclosures are incriminating, the witness may be entitled to a privilege against the “act of production.” However, this privilege is not a blanket protection for the information that the document contains. For example, if disclosure of the content of a record is incriminating, but producing the record is not, the records must still be produced.

The privilege against self-incrimination under the Fifth Amendment is an individual right. It does not apply to corporations, limited liability companies (LLCs), partnerships, and other organizations. In United States v. Braswell, the U.S. Supreme Court established that “the records are the property of the corporation, and, while an employee may be compelled to testify as to the nature of the records in his custody, he cannot be compelled to violate his Fifth Amendment privilege by testifying to the existence or contents of the documents,” and he will not “get the privilege if the records are that of the corporation and he has possession of them.” With this in mind, a corporate custodian is required to produce all corporate records that are subject to the subpoena without regard to his Fifth Amendment privilege.

The same reasoning also applies to any other individual who is in possession or control of the corporate records, whether the individual is or is not the corporate custodian. This includes all situations in which the individual has corporate records at their residence or in their individual capacity.

What Happens After a Judge Denies the Motion to Quash or Modify a Federal Grand Jury Subpoena?

For the most part, a judge’s denial of a motion to quash or modify a federal grand jury subpoena is not immediately appealable. Instead, the appellate review generally will not be available until a contempt order is issued by the district court. The contempt order can then be appealed from the district court to the appropriate U.S. Court of Appeals.

Under Rule 17(g), “a person who, without adequate excuse, fails to obey a subpoena can be held in contempt.” Generally, the enforcement procedure will be via a motion for a coercive civil contempt order. In other words, the individual’s or organization’s non-compliance must threaten the government’s prosecution of its case. If this is the case, then the subpoenaed party may be held in contempt until he or she produces the evidence demanded by the subpoena. Here, release or relief can be obtained simply by testifying or providing the required records, though a subsequent challenge to the subpoena could potentially be pursued.

The subpoenaed party will be in criminal contempt if disobedience is final, with no relief available upon production or testimony. In this scenario, criminal contempt will carry the punishment of fines, imprisonment, or both, with the sentence serving as punishment for the completed act of disobedience rather than as coercion for future compliance.

The appellate review process for a denial of a motion to quash or modify a federal grand jury subpoena can be accelerated if the non-indicted witness is a disinterested third party that happens to have a record that is subject to the privilege of a third party. In this case, the Perlman doctrine may apply and permit an immediate appeal based on the record’s third-party privilege.

Federal grand juries can seek contempt sanctions under 28 U.S.C. § 401. A federal court may also seek sanctions for false grand jury testimony pursuant to 18 U.S.C. § 1621 or 18 U.S.C. § 1623. Witnesses may have the option of pleading to their charge, and successful negotiations will result in reduced charges or immunity. However, the government will pursue criminal charges if necessary.

Contact a Federal Criminal Defense Attorney

Nothing here is legal advice, and the details of your case matter. Todd Spodek and Spodek Law Group take federal criminal and white collar cases nationwide, from offices in New York, Brooklyn, Queens and Los Angeles. You can reach the firm at 212-300-5196.