Fighting Federal Subpoenas as a Third-Party or Material Witness

Fighting Federal Subpoenas as a Third-Party or Material Witness

Getting a subpoena from the federal government can be scary. You may feel anxious about having to testify or turn over private records. However, there are ways you can fight a federal subpoena. This article explains your rights and options.

What is a Subpoena?

A subpoena is a court order that requires you to testify or turn over documents. There are two main types:

• A subpoena to testify requires you to answer questions under oath at a deposition or hearing.
• A subpoena for documents requires you to turn over things like emails, text messages, photos, or financial records.

If you get a subpoena, you are legally required to comply. But in some cases, you may be able to fight it.

Third-Party vs. Target

If you are the target of an investigation, like the defendant in a criminal case, you have the right to remain silent under the Fifth Amendment. But if you are a third-party witness, you may have to comply.

Third-party witnesses are people who get dragged into a case, but aren’t directly involved. For example, say the FBI is investigating a bank robbery. They might subpoena bank records from the bank manager or surveillance footage from a nearby store. The bank and store are third parties.

Types of Federal Subpoenas

There are many types of federal subpoenas, including:

• Grand jury subpoenas – from prosecutors investigating federal crimes
• Trial subpoenas – requiring you to testify at a trial
• Congressional subpoenas – from committees investigating matters of public interest
• Administrative subpoenas – from federal agencies investigating issues within their jurisdiction

The rules for fighting subpoenas vary depending on the type. But in general, here are some strategies:

File a Motion to Quash

One option is to file a “motion to quash” asking the court to cancel the subpoena. You would argue there is some legal basis for the subpoena being improper or invalid. For example:

• The information sought is protected by privilege, like doctor-patient confidentiality.
• Complying would be unreasonable or oppressive.
• The subpoena violates your constitutional rights.

If the motion is successful, the judge may quash or modify the subpoena so you don’t have to comply.

Claim Privilege

Some information is protected by “privilege” meaning you have the right not to disclose it. Common privileges include:

• Attorney-client privilege – Discussions between an attorney and client are confidential.
• Marital privilege – Spouses cannot be forced to testify against each other.
• Doctor-patient privilege – Medical information is confidential.

If the subpoena asks for privileged information, tell the court and request a protective order.

Object During the Deposition

If you are subpoenaed to testify at a deposition, you can object to specific questions. For example, you could say:

• “Objection. This calls for privileged information.”
• “Objection. This is irrelevant and beyond the scope of the investigation.”

Your objections will be recorded by the court reporter. The judge can later rule on whether you have to answer.

Modify the Subpoena

Instead of fighting the subpoena entirely, you may be able to get it modified or limited. For example, you could ask the court to:

• Shorten the time period covered by the subpoena.
• Narrow the types of documents you need to produce.
• Impose restrictions on how produced information can be used and shared.

Getting the subpoena narrowed can reduce the burden on you.

File a Motion for Fees

Complying with a subpoena can be costly, like hiring a lawyer and collecting records. If the subpoena is overly broad or vague, you can ask the court to order the other party to pay your fees for complying.

The Right Against Self-Incrimination

The Fifth Amendment gives you the right not to provide information that could implicate you in a crime. But this privilege only applies if you are at personal risk of prosecution. It generally does not apply to third-party witnesses.

If you think your testimony could expose you to criminal liability, tell the court you are asserting your Fifth Amendment right against self-incrimination. But you must assert it question-by-question during the deposition. You cannot make a blanket refusal to testify.

Journalist’s Privilege

Journalists have a limited privilege to protect confidential sources and information. If you get a subpoena as a journalist, contact your media organization’s legal team immediately. You may be able to fight the subpoena based on a journalist’s privilege, depending on the circumstances.

Law Enforcement Privilege

Law enforcement agencies often try to shield investigative materials from disclosure. If you work in law enforcement and get subpoenaed, here are some privileges that may apply:

• Law enforcement privilege – Records relating to law enforcement techniques and procedures may be protected from disclosure if their release would harm future investigations or reveal sensitive information.
• Informant’s privilege – The identity of confidential informants is generally privileged in order to protect their safety and encourage cooperation with law enforcement.
• Surveillance privilege – Information about surveillance locations, techniques and equipment may be privileged to preserve operational secrecy.

However, these law enforcement privileges are limited. The court will weigh the public interest in nondisclosure against the need for the information. If you work in law enforcement and are subpoenaed, be prepared to explain why certain information should remain confidential.

Third-Party Subpoenas vs. Targets

Another issue is whether you are a third-party witness or the target of the investigation. For example:

• A subpoena to a phone company for customer records makes the company a third party.
• But a subpoena to the suspect’s personal lawyer makes the lawyer more closely tied to the target.

If you have a close relationship with the investigation’s target, you may be able to assert common interest or joint defense privileges to avoid testifying.

Complying With Overly Broad Subpoenas

Sometimes federal subpoenas are worded very broadly, like demanding “all records relating to X”. Here are tips for dealing with an overbroad subpoena:

• Talk to the attorney who issued it and try to narrow the scope.
• Provide the records you think are relevant and object to the rest as “overly broad.”
• Ask the court to limit the subpoena to a reasonable time period, subject matter, etc.
• If allowed, produce anonymized or redacted records instead of unedited originals.

An unreasonable subpoena may be challenged as unduly burdensome. But expect resistance from the other side.

Conclusion

Getting a federal subpoena can be intimidating. But you may have valid reasons under the law for objecting. Consider hiring an attorney to advise you on the best response.