How to Challenge an Overly Broad FTC Subpoena

How to Challenge an Overly Broad FTC Subpoena

Getting served with a subpoena from the Federal Trade Commission can feel really intimidating and stressful. I get it – just because you got a subpoena does not automatically mean you have to fully comply with everything it asks for. You have rights too! This article will walk through, step-by-step, how you can challenge an FTC subpoena if you think it asks for way too much or would be too hard to comply with. I’ll explain the process in a helpful way, using everyday language, so you can protect your rights.

What Exactly is an FTC Subpoena?

The FTC has legal authority from Congress to issue subpoenas when it needs to investigate potential violations of consumer protection laws and rules. Subpoenas allow the FTC to legally require witnesses to testify and turn over documents and evidence relevant to an investigation [1]. There are two main types of FTC subpoenas:

• Subpoena Duces Tecum – requires giving the FTC documents or other physical evidence
• Subpoena Ad Testificandum – requires you or another witness to testify or be interviewed

If you just ignore or don’t fully comply with an FTC subpoena, they can go to federal court to get an order requiring you to comply. Disobeying a court order can lead to being charged with civil or criminal contempt of court if you still refuse to comply.

When Should You Consider Challenging an FTC Subpoena?

Just because you got served with a subpoena does not automatically mean you have to give the FTC everything they ask for. You have the right to legally challenge a subpoena if you think it is overly broad, asks for way too much, or would be unreasonably difficult to fully comply with. Here are some common reasons people challenge FTC subpoenas:

• The subpoena asks for materials that have nothing to do with the investigation
• Complying would cost way too much money or time
• The subpoena asks for confidential business information
• The subpoena asks for personal financial records unrelated to the investigation
• The subpoena asks for documents that don’t exist or can’t be found after a reasonable search

You should talk to an attorney familiar with FTC investigations to get advice on whether you have good legal grounds to challenge the subpoena. Don’t just ignore an FTC subpoena altogether, as that can lead to the FTC getting a court order forcing you to comply.

How Do You Legally Challenge an FTC Subpoena?

If you want to challenge an FTC subpoena, you need to file a formal petition asking the court to “quash” (completely throw out) or limit the subpoena. Here is the basic process:

1. Carefully review the subpoena and figure out which specific parts you want to challenge.
2. Figure out what legal grounds you have to challenge it. Common reasons are asking for irrelevant stuff, being way too broad, or being an undue burden.
3. Draft a petition explaining your legal objections and what limitations you want. Cite court cases that support your arguments.
4. File the petition with the FTC Secretary within 20 days of getting served with the subpoena [1].
5. Send a copy of the petition to the FTC lawyer who issued the subpoena.
6. Talk to the FTC lawyer to see if you can agree on reasonable limitations.
7. Wait for the FTC’s decision on your petition. They may agree to your changes, modify the subpoena, or deny your request.
8. Comply with the subpoena to the extent the FTC still requires if they deny your petition.

This process lets you raise objections and negotiate the scope of the subpoena before a court can order you to fully comply with it. Having an experienced attorney help draft and argue your petition makes success more likely.

What are the Most Common Legal Grounds for Challenging an FTC Subpoena?

Here are some of the most common legal arguments for challenging an FTC subpoena:

It’s Overly Broad

You can argue the subpoena is overly broad if it asks for materials or testimony not really relevant to the specific investigation. For example, asking for every single communication your company has had over 5 years when the investigation is focused on one specific product.

In one past case, a company successfully argued a subpoena asking for all documents related to “weights, measures, and labeling” was way too broad for an investigation into a few specific health claims [2]. The judge agreed and limited the subpoena to only documents about those health claims.

It’s an Undue Burden

You can argue the subpoena is an undue burden if fully complying would cost an unreasonable amount of money or time. This often comes up with broad subpoenas for huge amounts of electronic records.

In one case, a company showed that having to search through emails from the past 3 years would cost over $100,000. The judge agreed that was an undue burden and limited the email search to just 6 months [3].