NATIONALLY RECOGNIZED FEDERAL LAWYERS
How Federal Subpoenas Allow Agencies to Retain Privileged Information
|Last Updated on: 2nd October 2023, 05:52 pm
How Federal Agencies Use Subpoenas to Get Information
Subpoenas are powerful tools that federal agencies can use to get information from people and companies during investigations. But they can also be used to get sensitive stuff that you might want to keep private. This article looks at how subpoenas work, what kinds of private information is at risk, and what you can do to protect it.
What Are Subpoenas?
Let’s start with what a subpoena actually is. A subpoena is a formal demand for information that comes from a federal agency. It orders you to hand over documents, show up at a deposition to answer questions, or testify before a grand jury.Subpoenas get their power from the Federal Rules of Civil Procedure – you know, the rules that govern civil lawsuits in federal court. Government agencies like the SEC, FTC, and Department of Justice rely heavily on subpoenas when they’re investigating potential violations of the law.These agencies have broad power to look into stuff like securities fraud, antitrust violations, and consumer protection issues. Subpoenas give them the ability to force companies, banks, and people to cough up information related to their investigations.
What Kinds of Information Do Subpoenas Request?
Subpoenas often try to get sensitive or private information. This includes:
- Communications between attorneys and clients
- Trade secrets
- Medical records
- Tax returns
- Journalists’ confidential sources
By getting this kind of information, the investigating agencies can build stronger cases. But handing it over can really hurt businesses, invade privacy, reveal legal strategies, and undermine constitutional rights.
Key Privileges That Limit Subpoenas
There are some legal doctrines that restrict what information federal subpoenas can force you to provide:
Attorney-Client Privilege
This privilege protects confidential communications between attorneys and clients that are made to get legal advice. It’s one of the oldest and most important privileges in our legal system.Just labeling something “privileged” doesn’t automatically protect it though. Courts decide on a case-by-case basis whether the privilege applies.
Work Product Doctrine
This doctrine protects stuff lawyers prepare “in anticipation of litigation” from discovery. That includes internal memos, notes, litigation strategies, interview recordings, etc.There are some limits though. Factual “work product” can be discovered, while “opinion” work product is more protected.
Trade Secret Protections
Trade secrets like formulas, methods, or customer lists have protections against disclosure. But agencies often demand trade secrets during investigations.Recipients can ask courts to limit access to attorneys and experts, but in-house counsel usually gets access.
Tax Return Privacy
Personal tax returns have privacy protections and can’t be freely disclosed. The DOJ has procedures governing tax subpoenas and generally has to notify taxpayers before getting returns from the IRS.
Reporter’s Privilege
Journalists have a limited “reporter’s privilege” that protects confidential sources and unpublished material in some cases. But there’s no federal shield law like some states have.Instead, courts do a vague balancing test weighing the public interests in disclosure vs. news gathering.
Challenging Subpoenas
If you get a subpoena requesting privileged or confidential information, there are ways to challenge it:
- Motion to Quash: Asks a court to cancel a subpoena for defects like being too vague or requesting privileged documents.
- Motion for Protective Order: Asks a court to limit access to sensitive documents or block depositions on privileged topics.
- Privilege Log: A detailed list of documents withheld on privilege grounds that you provide to the other party.
However, agencies often argue against privilege claims using the “crime-fraud exception.” This controversial doctrine pierces privilege when communications allegedly further a crime or fraud.Critics say government agencies apply it too broadly.
What If Privileged Information Is Accidentally Disclosed?
If you accidentally hand over privileged information, you’re supposed to get it back under the Federal Rules of Civil Procedure.But it’s unclear whether government agencies have to return privileged documents they receive. Some courts say yes, others say no.For example, in FTC v. DirecTV the court said the FTC could keep privileged documents it got by accident. That’s because it was acting as the government rather than a private litigant.But that decision has been criticized for unfairly disadvantaging parties facing government investigations.
In Conclusion
While federal subpoenas give agencies broad power to investigate potential violations, privileges and privacy rights still place some limits on what they can get and keep.But once they have your sensitive information, it can be hard to get it back. If you get a subpoena requesting privileged stuff, review it carefully and be ready to fight hard to protect confidentiality.