Complying With DOJ and SEC Federal Subpoenas

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• It’s mandatory – you must comply unless you get the subpoena withdrawn or modified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.

Dealing With DOJ and SEC Subpoenas: A Guide for the Perplexed

Getting a subpoena from the Feds can make anyone feel anxious and overwhelmed. As a lawyer who regularly helps clients respond to DOJ and SEC subpoenas, I totally get it. These things look scary! But don’t worry – with some practical tips, you can get through the process smoothly and protect your rights.

First, Don’t Panic

Easier said than done, I know. But take a few deep breaths and don’t do anything rash. Don’t start shredding documents or dodging investigators’ calls. That kind of stuff will only make things worse.

Instead, stay calm and start gathering information. Carefully read the subpoena to see what they’re asking for. Make a list of anyone who might have relevant documents or know details that could help. Don’t delete anything that could be responsive – you have to maintain and produce all that material.

Get an Attorney on Your Side

Trying to handle a federal subpoena alone is crazy risky. These things are complicated! You need an experienced lawyer to protect your rights. DOJ subpoenas can lead to criminal charges if you screw up. Even SEC subpoenas for civil inquiries can land you in hot water.

A good lawyer will know all the rules about what you have to produce, what you can withhold, and how to object if the subpoena is too broad. They’ll keep the investigators from steamrolling over you. And they’ll prevent you from accidentally confessing something you shouldn’t.

Gather Everything – No Exceptions

You have to turn over everything the subpoena requests – emails, financial records, memos, the works. No trying to decide what seems “relevant” or not. That’s for the DOJ or SEC to determine. If you withhold anything, that’s obstruction of justice and can lead to criminal charges.

So be exhaustive in collecting materials from all possible sources – computers, company servers, even personal devices if you used them for business. Your lawyer can then review for privilege and responsiveness. But it’s better to gather too much than too little.

Protect Privileged Info

While you can’t withhold documents unilaterally, your attorney may be able to shield privileged materials like:

• Attorney-client communications
• Confidential business info
• Trade secrets
• Attorney work product

But privilege has to be asserted carefully. The feds may fight back on overly broad claims. It’s a delicate dance, so let your lawyer take the lead here.

Negotiate When Needed

If the subpoena deadline seems impossible or the scope is ridiculously broad, your lawyer may be able to get some concessions. For example, they could:

• Ask for more time if needed to comply fully
• Explain unreasonable burdens imposed
• Suggest reasonable modifications

The feds don’t always say yes, but it’s worth trying to negotiate if the subpoena is truly overbearing.

Stay Truthful

Lying or misleading federal investigators, even accidentally, is a huge no-no. When testifying or responding in writing:

• Provide complete and accurate information
• Admit it if you don’t know something
• Correct any mistakes immediately

Trying to cover up usually backfires. So work closely with counsel to cooperate fully while still protecting your rights.

Handling DOJ or SEC subpoenas is daunting. But taking a methodical approach, retaining experienced counsel, and staying calm can help you get through it. You’ve got this!

Complying With DOJ and SEC Federal Subpoenas

Receiving a subpoena from the Department of Justice (DOJ) or Securities and Exchange Commission (SEC) can be an intimidating and stressful experience. However, it’s important to stay calm and take the necessary steps to comply. This article provides an overview of DOJ and SEC subpoenas, as well as tips for responding properly.

What is a Subpoena?

A subpoena is a writ or order issued by a government agency compelling the production of documents, data, or witness testimony. Both the DOJ and SEC have the authority to issue subpoenas to obtain evidence during investigations into potential violations of federal laws.

There are two main types of subpoenas:

• Document subpoenas – require the production of tangible items such as papers, books, records, photos, or other documented information relevant to an investigation.
• Testimonial subpoenas – compel an individual to provide oral testimony on a particular matter.

In most cases, these subpoenas are enforceable, meaning failure to comply could result in civil or criminal penalties. So it’s essential to take them seriously.

DOJ Subpoenas

Various divisions and offices within the DOJ can issue subpoenas to assist with investigations, including the FBI, DEA, and U.S. Attorneys’ Offices. The DOJ views subpoenas as “extraordinary measures” and not standard procedure [1].

According to DOJ guidelines, subpoenas should only be used as a last resort when other investigative approaches have been exhausted. There are also special rules around issuing subpoenas to journalists or media organizations [1].

In most cases, a federal prosecutor handling the investigation must approve the subpoena before issuance. There are also requirements to consult with DOJ leadership in certain sensitive cases before proceeding [1].

Responding to a DOJ Subpoena

If you receive a subpoena from the DOJ, you should immediately notify an attorney to assist with the response. In general, it’s important to fully comply within the production deadline provided.

However, an attorney can help negotiate the scope or timing of compliance if the request seems unreasonable. They may also be able to clarify any vague or ambiguous language in the subpoena through discussions with the prosecutor [2].

Failure to properly respond could result in the DOJ seeking a court order to compel compliance. So taking proactive steps with legal guidance is critical.

SEC Subpoenas

The SEC frequently uses subpoenas to investigate potential violations of federal securities laws. This includes matters like insider trading, accounting fraud, or providing false information about securities.

The SEC has broad authority to compel the production of any documents or testimony relevant or material to an investigation [3]. And they can issue subpoenas nationwide to anyone in possession of pertinent information.

Common recipients of SEC subpoenas include broker-dealers, investment advisers, companies, executives, and any other individuals involved in the securities industry.

Responding to an SEC Subpoena

The SEC expects full compliance with subpoenas and typically imposes short deadlines. It’s essential to engage legal counsel immediately to avoid missteps.

Counsel can help assemble responsive documents, ensure you meet production deadlines, and object to any inappropriate or burdensome requests. Negotiating the scope of compliance through an attorney often leads to better outcomes.

As with DOJ subpoenas, the SEC can go to federal court to enforce a subpoena if a recipient fails to comply. But working constructively with counsel reduces this risk.

Confidentiality

Note that DOJ and SEC subpoenas often come with confidentiality requirements. You cannot disclose the existence of the subpoena or investigation to anyone without authorization.

This includes revealing it to colleagues, supervisors, friends and family, or the media. Violating confidentiality can lead to criminal charges.

Seeking Protection

In some cases, subpoena recipients may be able to get a protective order from a court to limit the scope of compliance:

• Judges can obtain protection from subpoenas directed to them or their staff through special administrative procedures [4].
• Other parties can file a motion to quash or modify a subpoena if it is overly broad, vague, irrelevant, or privileged [3].

However, courts give significant deference to DOJ and SEC subpoenas. So seeking protection should generally be a last resort with low probability of success.

Penalties for Non-Compliance

It’s critical to comply fully and on time with DOJ and SEC subpoenas. Penalties for failure to respond can include:

• Civil contempt charges
• Criminal contempt charges
• Obstruction of justice charges
• Fines or imprisonment