Negotiating With Federal Agencies to Limit Subpoena Scope

Negotiating With Federal Agencies to Limit Subpoena Scope

Getting hit with a federal subpoena can be intimidating. The requests often seem incredibly broad, seeking years worth of records, emails, files – basically your entire life’s work. Your first reaction may be “there’s no way I can pull all this together in time.” But take a deep breath – you have options. Negotiating with the issuing agency can often be the most effective approach to limit your obligations.

Federal agencies like the DOJ, SEC, and FTC have broad authority to issue subpoenas to further their investigations. But they also understand the burden responding can place on individuals and companies. Here are some strategies for negotiating with agencies to limit subpoena scope:

Understand the Rules

Get familiar with the agency’s regulations for issuing subpoenas, called Civil Investigative Demands (CIDs) or Touhy regulations. Understanding the process helps identify opportunities to narrow the request. For example, some agencies require higher-level approval for certain types of information requests. Pointing this out may convince them to scale back.

Assess Your Situation

Catalog what information you have and where it’s stored. This allows you to demonstrate the burden of complying in full. For email, tally up the number of accounts and potential messages. For paper files, estimate the volume and location. Helping the agency understand the scope and logistics involved can motivate them to reduce requests.

Request an Extension

Most agencies provide a timeframe for responding, often only 2-3 weeks. Request an extension, even just a couple extra weeks. This gives you more time to negotiate and prepare your response. Be specific on why you need more time – you’re gathering info to propose alternatives, hiring specialists to assist, etc.

Make Timely Objections

Agencies’ regulations include processes to object to subpoena requests. File petitions outlining reasons the subpoena is inappropriate or unduly burdensome. But do so within deadlines – delays can weaken your position. Be specific on your objections and propose alternatives, like limiting to certain time periods, custodians, or search terms.

Offer Alternatives

Proactively offer reasonable ways to reduce the work required. For email, propose search terms and date ranges to filter results. For paper files, suggest limiting requests to specific topics or file locations. The key is showing you’re trying to cooperate, just need some accommodations.

Prioritize and Stagger Responses

Propose a tiered response that focuses first on the most relevant materials. For example, email from key custodians, or files related to transactions under investigation. Then later produce lower priority items if still needed. This shows reasonableness and gets them information faster.

Request Telephone Conferences

Ask for a call to discuss the scope and clarify what they’re seeking. Agencies don’t always know what information the target has. Discussing your concerns directly can help narrow things down. Building rapport also encourages cooperation. Follow up any calls with email summaries to create a paper trail.

Hire Experienced Counsel

An attorney experienced with federal subpoenas can effectively negotiate on your behalf. They have relationships with agency personnel and understand processes for challenging requests. This frees you to focus on your business while they handle negotiations.

Consider Seeking Judicial Relief

If agency negotiations fail, you can challenge the subpoena in court. But the bar is high, so court action mainly works to spur further negotiations. Experienced counsel can advise whether litigation makes sense. Some situations allowing court relief include subpoenas seeking privileged, classified or otherwise protected information.

The key is engaging with the agency early and showing you’re acting in good faith. Avoid delays or ignoring requests – this provokes agencies to take harsher action. Be creative in offering alternatives that meet the agency’s needs while reducing your burden. With the right approach, you can achieve a positive outcome.

Key Laws and Precedents on Subpoena Power

Federal agencies derive subpoena authority from various laws. Understanding the sources helps target negotiations:

• DOJ – Administrative Procedures Act authorizes subpoenas for agency investigations
• SEC – Securities Exchange Act of 1934 empowers SEC subpoenas
• FTC – Federal Trade Commission Act grants subpoena power
• IRS – Internal Revenue Code allows IRS subpoenas

Key precedents also establish and limit agencies’ subpoena authority:

• United States v. Morton Salt Co. – Validates use of subpoenas for “official curiosity” investigations
• United States v. Powell – Establishes limitations on “unreasonable” subpoenas
• In re McVane – Upholds subpoenas unless “plainly incompetent or irrelevant”

Understanding the nuances of these laws and cases helps shape negotiations and court petitions challenging overly-broad subpoenas.

Possible Defenses Against Overly-Broad Subpoenas

While rare, courts will quash or limit agency subpoenas in certain circumstances. Defenses include:

• Subpoena exceeds agency’s statutory authority
• Subpoena seeks information irrelevant to investigation
• Compliance would be unduly burdensome
• Subpoena violates Constitutional rights (1st Amendment, 4th Amendment, 5th Amendment)
• Subpoena improperly requests privileged information
• Subpoena fails to follow required administrative procedures

However, courts generally defer to agencies on subpoena scope. Winning on these defenses requires clear excessiveness relative to the investigation. Experienced counsel can advise whether litigation to quash is viable.

Takeaways

Federal subpoenas can seem intimidating and burdensome. But various strategies exist to engage agencies and negotiate reasonable modifications. Seeking prompt relief, offering alternatives, and demonstrating good faith cooperation go a long way. With the right approach, targets can achieve positive results even when facing broad agency subpoenas.