Criminal Defense Lawyers

Appointing a Designated Custodian for Federal Subpoena Compliance

Appointing a Designated Custodian for Federal Subpoena Compliance

When a company gets a federal subpoena asking for documents or information, having one person or department handle responding can make things go much more smoothly. Let’s talk about some tips for picking a designated custodian and how they can help with subpoena compliance.

Why Have a Custodian?

There are a bunch of good reasons to appoint a custodian:

• One Process – Having the same person or group handle all the subpoenas creates consistency and helps them become experts.
• Expertise – The custodian builds up knowledge about what the law requires, so they can respond efficiently and properly.
• Reduced Burden – Consolidating the work takes the burden off other employees who can focus on their regular jobs.
• Lower Risk – Careful handling by someone knowledgeable reduces mistakes that could get the company in legal trouble.

Without a point person, responses might be fragmented and sloppy. Formally picking a custodian avoids those issues.

Who Can Be the Custodian?

There aren’t any hard rules on who should be tapped as custodian. Here are some options to think about:

• Records Management – These teams already deal with keeping and producing records, so subpoena compliance fits right in.
• Paralegals – Depending on size, some companies have paralegals just for subpoenas and information requests.
• Legal Department – Lawyers here are great for making sure responses meet requirements.
• IT Department – Tech teams often have to pull together the requested data.

Cross-training multiple people also provides backup for vacations or if someone leaves.The custodian(s) should be super organized, detail-oriented, and able to put together lots of information.

Best Practices for Custodians

Once appointed, custodians should follow best practices to respond properly:

• Keep a Log – Write down details like when it was received, who wants what, response dates, etc.
• Have Procedures – Document steps for collecting, reviewing, processing, and turning over materials.
• Use Technology – Use eDiscovery tools to efficiently find and produce documents.
• Involve Legal Counsel – Get guidance to avoid improper sharing or other violations.
• Communicate Internally – Keep departments in the loop if their records are needed.
• Follow Up – Make sure the requesting party got everything and address any questions.
• Stay Up to Date – Keep current on any changes to laws and best practices.

Using matter management or eDiscovery software also improves efficiency and consistency.

Responding to Subpoenas

The custodian has a key role in pulling together information covered by a federal subpoena. Here’s an overview of the process:

• Review the Subpoena – Evaluate what is being asked for and where those materials might be. Note response deadlines.
• Object If Needed – Raise challenges promptly if there are grounds to fight the subpoena.
• Gather Documents – Have IT help search systems and collect materials from departments.
• Review and Process – Check for privilege and responsiveness. Make any required redactions.
• Produce Documents – Give the requesting party the responsive, non-privileged materials by the deadline.
• Follow Up – Confirm they got the production and address any questions.

If the requests seem overly broad or burdensome, talk to legal counsel about possible changes.

Special Considerations for Financial Firms

Banks and financial firms deal with frequent subpoenas asking for customer information. They have to balance compliance with privacy rules. Some best practices:

• Require legal process – Only provide confidential data if compelled by valid authority like a subpoena.
• Insist on specificity – Push back on vague or overbroad requests.
• Meet and confer – Discuss modifying burdensome requests.
• Use protective orders – Limit use of produced information to protect privacy if needed.
• Notify customers – Let impacted customers know if permitted.
• Charge reasonable fees – Seek reimbursement for production costs.

See this overview for more on financial industry subpoena responses.

Law Enforcement Subpoenas

Criminal investigations often involve subpoenas from federal agencies like:

• FBI
• DEA
• ATF
• IRS
• ICE
• US Marshals

These are governed by the Right to Financial Privacy Act. This limits what info agencies can get without formal legal process like a subpoena or warrant. It also has rules on notifying customers.Tips for handling law enforcement subpoenas:

• Require paperwork – Only provide records if compelled by valid legal process.
• Restrict use – Get protective orders or use restrictions if needed.
• Follow notice rules – Give legally required customer notices.
• Get reimbursement – Request payment for response costs.

See the Justice Department’s guidelines for more details.

Subpoenas for Employee Records

It’s common in employment cases for plaintiffs’ lawyers to subpoena employee records. Some tips for employers:

• Review relevance – Make sure requests seek relevant info.
• Limit exposure – Redact or withhold unnecessary personal details.
• Watch deadlines – Respond on time to avoid contempt.
• Get legal advice – Talk to counsel about obligations and options.

Giving required employee notices and objecting to overbroad requests is also key.

Using Technology for Response

Technology offers big help responding to federal subpoenas. Solutions like matter management systems track key details online. eDiscovery uses AI to quickly find and compile responsive records across multiple systems.Other tech tools that can assist:

• Document review platforms – Speed up privilege review and redaction
• Collaboration software – Coordinate across departments
• Automation tools – Standardize repetitive processes
• Forensics tools – Help isolate responsive data and metadata

See this overview of AI-assisted review for more on leveraging legal technology.

Training the Team

Training custodians and others involved helps ensure they know what to do. Topics should cover:

• Applicable laws and rules
• Internal policies and procedures
• Ethical obligations around confidential data
• Available technologies and how to use them
• Best practices for workflows and processes

Do training regularly like annually and always train new team members. Refreshers on legal and regulatory changes are crucial.

What Happens If You Don’t Comply?

Failing to properly respond to a federal subpoena can lead to serious consequences like:

• Contempt of court findings
• Fines or penalties
• Reputational damage
• Evidence being barred
• Jury instructions adverse to the company
• Default judgments
• Jail time for contempt in extreme cases

Having practices that ensure timely, complete, and lawful responses is critical.

Key Takeaways

Having a go-to custodian really helps make federal subpoena compliance smooth and avoids mistakes. Here are some of the big takeaways:

• Pick an organized, detailed-focused custodian to handle all responses
• Implement standardized policies, procedures, and technology
• Custodian duties include tracking deadlines, gathering records, reviewing, and producing docs
• Financial firms must balance compliance with privacy protections
• Law enforcement subpoenas require strict adherence to notice laws
• Technology like AI-assisted review improves efficiency
• Noncompliance can have serious legal consequences, so training and protocols are key

Following best practices for the custodian role supports efficient, legally sound subpoena responses. Let me know if you have any other questions!