Options for Businesses Unable to Comply With Onerous Federal Subpoenas

What Can You Do If You Get Slapped With a Burdensome Federal Subpoena?

Getting served with a federal subpoena can be intimidating. Even if you haven’t done anything wrong, dealing with the feds is no joke. And their subpoenas can be incredibly broad, demanding tons of records and documents. For a small business without a legal team, this can be overwhelming.

But you do have options. Let’s walk through what to do if you get burdened with an unreasonable federal subpoena.

First Things First: Don’t Ignore It

It may be tempting to stick your head in the sand. But ignoring a federal subpoena is never a good idea. The feds don’t mess around. You could face charges for obstruction of justice or contempt of court if you don’t respond.

So take a deep breath and know that you have rights here. The law protects people from unreasonable subpoenas. But you have to take action and assert those rights.

Carefully Review What They’re Asking For

Read through the subpoena closely. Make sure you understand exactly what they’re demanding. Federal subpoenas can request different types of information, like:

• Documents
• Electronically stored information (like emails)
• Tangible things (like products or equipment)
• Inspection of premises
• Testimony at a deposition or hearing

The subpoena should clearly state what information is being requested, and provide specific details like date ranges and subject matter. If anything is unclear, your attorney can contact the issuing agency to clarify.

Get Legal Help Right Away

Don’t try to handle this alone. Get an experienced attorney on your side immediately. Federal subpoenas raise complex legal issues that regular people aren’t equipped to deal with.

Your attorney can review the subpoena and determine if it’s valid. They can also negotiate with the federal agency to narrow or modify the request if it’s overly broad. Or file a motion to quash the subpoena if it’s invalid or unduly burdensome.

Having a lawyer handle communications takes the pressure off you. And it prevents you from accidentally saying something you shouldn’t.

Negotiate the Scope

In many cases, you can work with the federal agency to narrow the subpoena request. This is called negotiating the “scope” of the subpoena.

For example, if they’re asking for all emails about a certain topic over the past 5 years, you may be able to get them to reduce the timeframe to 1 year. Or limit the request to just certain email custodians.

Your attorney can have these discussions and try to reach an agreement. Any compromises should be confirmed in writing.

Assert Relevance Objections

Federal agencies can only subpoena information that’s relevant to their investigation. If the subpoena includes requests for irrelevant material, your lawyer can raise “relevance objections.”

For example, if the agency is investigating conduct in 2018, demanding documents from 2013 may be overreaching. Your attorney can push back on those requests.

Relevance objections can also apply to specific document types. Just because some emails are relevant doesn’t mean they need access to HR records.

Claim Undue Burden

If complying with the subpoena would be unreasonably expensive, time-consuming or disruptive to your business, your lawyer can argue “undue burden.”

Factors considered in determining undue burden include:

• The amount of information requested
• The locations it’s stored in
• The number of custodians involved
• The costs to collect, review and produce

If the agency won’t narrow the scope, your attorney can file a motion asking the court to modify or quash the subpoena because compliance would be unduly burdensome.

Protect Privileged Information

Certain materials are protected by legal privilege, like:

• Attorney-client communications
• Attorney work product
• Trade secrets
• Protected health information (PHI)

Your lawyer can identify privileged information and either redact it or withhold privileged documents entirely.

If the federal agency won’t agree, your attorney can file a motion asking the court to prevent disclosure of privileged materials.

Petition the Agency Head

If you disagree with the subpoena, you can write to the head of the federal agency issuing it. Explain why you think the subpoena is inappropriate and respectfully ask them to withdraw or modify it.

It’s a long shot, but some agencies are willing to reconsider if they’re provided with good reasons. It shows you’re willing to cooperate within reason.

File a Motion to Quash

If informal negotiations fail, your attorney can file a motion to quash in federal court. This asks the judge to invalidate the subpoena because it’s improper or oppressive.

Reasons a subpoena might be quashed include:

• Lack of jurisdiction
• Invalid service
• Unreasonable scope
• Undue burden
• Privileged materials
• Privacy concerns

Your lawyer will explain why the subpoena should be quashed under the rules of civil procedure. The federal agency can file a response, and the judge will decide whether to modify or quash the subpoena. Some key factors the judge will consider include[1]:

• Whether the subpoena allows reasonable time to comply
• If the subpoena exceeds geographic limits
• If the subpoena requests privileged information
• Whether compliance would be unduly burdensome

The judge can quash the subpoena entirely or modify it to be more reasonable. For example, giving more time to comply or limiting the scope of documents requested[2].

When deciding a motion to quash, the judge will balance the subpoenaing party’s need for the information against the burden on the subpoenaed party[3]. If compliance would seriously disrupt normal business operations, the judge may find the subpoena overly broad[4].

The federal agency can file a response opposing the motion to quash. They will argue why the subpoena should be enforced as written. Both sides will cite case law on the scope of federal subpoena power[5].

Ultimately, the judge has discretion whether to quash or modify the subpoena[6]. If your lawyer makes a compelling argument, the judge may limit the subpoena to prevent undue burden. But there’s always a chance the motion is denied and you’ll have to fully comply.

Having an experienced federal litigator argue the motion improves your odds. But there are no guarantees when dealing with federal subpoenas. The best approach is negotiating reasonable limits cooperatively with the agency. Going to court should be a last resort if talks fail.