Complying With DOJ and SEC Federal Subpoenas

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Last Updated on: 2nd October 2023, 05:51 pm

Complying With DOJ and SEC Federal Subpoenas

Getting a subpoena from the Department of Justice or Securities and Exchange Commission can be intimidating. However, it’s important to stay calm and make sure you respond appropriately. Here’s a plain English guide to understanding federal subpoenas and complying with requests from the DOJ or SEC.

What is a subpoena?

A subpoena is a request for you to provide information, documents, or testimony. There are a few key things to know:

• It’s mandatory – you must comply unless you get the subpoena withdrawn or modified
• There are deadlines for responding
• There can be penalties for failing to comply

Subpoenas are a routine part of DOJ and SEC investigations. Getting one doesn’t necessarily mean you’re in trouble. It just means they need information from you for an investigation.

Types of subpoenas

There are a few main types of federal subpoenas:

• Document subpoenas – require you to provide documents and records
• Testimonial subpoenas – require you to testify at a deposition, hearing, or trial
• Combined subpoenas – require both documents and testimony

The DOJ and SEC can issue subpoenas directly themselves. They can also ask a federal court to issue a subpoena.

Steps for responding to a document subpoena

If you get a subpoena for documents from the DOJ or SEC, here are key steps to take:

1. Don’t ignore it – document subpoenas typically have short deadlines of 10-20 days
2. Notify your employer if the subpoena is addressed to you at work
3. Contact the DOJ or SEC attorney listed on the subpoena to discuss the scope and set up a production schedule
4. Collect responsive documents – this may involve coordinating with your IT department
5. Review the documents with your lawyer to remove privileged or non-responsive items
6. Produce the documents by the deadline, following proper procedures for labeling, Bates-stamping, etc.
7. Keep a record of what was produced, in case you need to refer back later

Some key things to know about document productions:

• You may need to produce electronic records, like emails and digital files
• You can object to requests that are irrelevant, overly broad, burdensome, privileged, or proprietary
• Your lawyer can help negotiate the scope or get an extension if needed

Complying with a testimonial subpoena

If you receive a subpoena to testify in an SEC or DOJ investigation, you have the right to be represented by a lawyer at your own expense. Here are steps to take:

1. Notify your employer if the subpoena relates to your work
2. Hire an attorney – you’re entitled to have a lawyer present
3. Meet with your lawyer to prepare – you’ll review relevant documents and go over likely questions
4. Appear at the date, time, and location listed – make sure you have proper ID
5. Take an oath to testify truthfully – it’s a federal crime to lie
6. Answer questions fully and truthfully – but don’t speculate or volunteer information
7. Review and sign your testimony transcript afterwards to confirm accuracy

Things to keep in mind if testifying:

• Don’t try to avoid service of the subpoena – you can face criminal charges
• Assert your 5th Amendment right against self-incrimination if applicable
• Stick to facts you know first-hand in answering questions
• Don’t obstruct justice by hiding, altering, or destroying relevant evidence

Consequences of not complying

It’s critical to take federal subpoenas seriously. If you don’t comply, here are possible consequences:

• The DOJ or SEC can make an emergency motion asking a federal court to order you to comply
• You can be held in contempt of court for violating a court order, leading to fines or jail time
• The DOJ can get a material witness warrant to arrest you and bring you before the grand jury
• Noncompliance can lead to criminal charges for obstruction of justice
• The SEC can refer noncompliance to the DOJ for criminal prosecution

Fines for contempt of court can be up to $1,000 plus reimbursement of attorney fees. Jail time can be up to 18 months. Obstruction of justice can lead to 5 years imprisonment. Don’t let it get to this point – comply fully and on time.

Special considerations for attorneys

If you’re an attorney, there are some special considerations when dealing with DOJ or SEC subpoenas:

• Notify clients promptly about any subpoena for their records
• Assert attorney-client privilege and work product protections when applicable
• Get client consent before producing privileged documents
• Limit testimony to first-hand factual knowledge – don’t reveal privileged communications
• Object to requests for testimony on client representations

Attorneys have ethical duties to clients that can create complications when responding to subpoenas. Get experienced counsel to protect client confidences.

Getting help

Don’t try to handle a federal subpoena alone. Consulting an attorney experienced with SEC and DOJ investigations is highly recommended. Here are some tips on finding the right lawyer:

• Choose someone with specific experience handling federal subpoenas and SEC/DOJ matters
• Pick a law firm with resources to handle large-scale document productions if needed
• Find an attorney you’re comfortable with – you may be working together for months
• Ask about pricing upfront – handling subpoenas can get expensive with hourly rates

Having knowledgeable counsel by your side will make the subpoena process much smoother. An attorney can ensure you meet obligations while protecting your rights.

Takeaways

Dealing with a subpoena from the DOJ or SEC can seem daunting, but staying calm and organized will help you get through it. The key takeaways are:

• Don’t ignore subpoenas – comply by the deadline
• Hire an experienced attorney to guide you through the process
• For document requests, focus on finding responsive materials efficiently
• For testimony, prepare thoroughly and stick to the facts
• Follow your attorney’s advice to avoid missteps

By understanding the subpoena process and getting skilled legal help, you can responsibly cooperate with DOJ and SEC investigations. This straightforward guide should help demystify federal subpoenas and give you confidence to deal with them properly.