Options When a Federal Subpoena Requests Privileged Information

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Last Updated on: 2nd October 2023, 05:52 pm

Options When a Federal Subpoena Requests Privileged Information

Receiving a federal subpoena requesting privileged information can be a stressful and confusing situation. As a layperson, you may not fully understand your rights and responsibilities when it comes to complying with a subpoena. This article will walk you through the key things you need to know and potential courses of action when faced with a federal subpoena seeking privileged documents or testimony.

What is a federal subpoena?

A federal subpoena is a court order requiring you to provide documents, information, or testimony relating to a court case or government investigation[1]. Subpoenas are issued under the authority of the court hearing the case. Attorneys, individuals representing themselves, or government agencies can issue subpoenas.

There are a few key components to a valid federal subpoena[1]:

• It must state the name of the court where the case is filed
• It must include the case title and docket number
• It must command you to produce documents or appear to testify
• It must state the time and place to respond
• It must describe what evidence is being requested
• It must explain how testimony will be recorded

Subpoenas can request that you produce physical documents, electronically stored information, or other tangible items. They can also compel you to testify at a deposition or hearing.

What is privileged information?

Privileged information refers to documents, communications, or testimony that are legally protected from disclosure. There are a few main types of privileges[2]:

• Attorney-client privilege – Protects confidential communications between an attorney and client made for the purpose of obtaining legal advice
• Doctor-patient privilege – Protects communications between a doctor and patient related to treatment
• Priest-penitent privilege – Protects communications between a religious clergy member and a person seeking spiritual counsel or confession
• Spousal privilege – Protects the contents of confidential communications made between spouses

If a subpoena requests privileged information, you have a legal right to withhold it. However, you must properly assert and explain the privilege – you cannot just ignore the subpoena.

Your options when served with a subpoena requesting privileged documents

If you receive a federal subpoena that requests privileged documents or testimony, you have several options:

1. Assert the privilege – You can object to the subpoena on the grounds that it requests privileged information. You must clearly explain what privilege applies and why in your written response[3].
2. Negotiate a compromise – One strategy is to negotiate with the issuing attorney to see if you can reach an agreement on a limited production of non-privileged information[4]. This involves compromise on both sides.
3. File a motion to quash – If you are unable to reach an agreement with the issuing attorney, you can file a motion to quash the subpoena in federal court. This asks the judge to invalidate or modify the subpoena[1].
4. Let the judge decide – If negotiations fail, you can produce a privilege log detailing the documents you are withholding and let the judge rule on the validity of your privilege claims[5].

Each of these options has different pros, cons, and steps involved, which will be explained in more detail in this article.

Asserting privilege in response to a subpoena

If you receive a subpoena requesting privileged documents, the simplest option is to object and assert your privilege in your written response. Here are the key steps involved:

1. Carefully review the list of requested documents and identify any privileged communications or records.
2. Within the deadline specified on the subpoena, provide a written response that objects to the production of privileged material.
3. Clearly state what privilege you are claiming for each document. Explain why the privilege applies.
4. For any non-privileged responsive documents, produce those to the issuing attorney.

Some advantages of asserting privilege in your subpoena response:

• It is faster and less expensive than filing a motion to quash.
• It puts the burden on the issuing attorney to challenge your privilege claim.
• It avoids disclosing privileged details to the court.

The main downside is that the issuing attorney can choose to challenge your privilege claims and file a motion to compel. This puts you back in court arguing over the subpoena.

Negotiating a compromise on privileged documents

Rather than simply asserting privilege, you may be able to negotiate with the issuing attorney to narrow the scope of the subpoena. This involves compromise on both sides but can save time and legal fees down the road. Here is the basic process:

1. Contact the issuing attorney to discuss modifying the subpoena to exclude privileged material.
2. Offer to provide some responsive, non-privileged information that meets their needs.
3. See if you can agree on limitations – a time frame, search terms, or custodians, for example.
4. Get any agreements in writing to modify the subpoena.
5. Produce the agreed-upon documents by the deadline.

Some benefits of negotiating with the issuing attorney:

• It maintains a cooperative, professional relationship.
• It avoids lengthy legal disputes over privilege.
• It allows you to produce helpful information voluntarily.

The downside is that it requires both sides to compromise. You may have to produce some marginally privileged material. But this modest disclosure is sometimes preferable to litigation.

Filing a motion to quash a subpoena for privileged documents

If informal negotiations fail, your next option is to file a motion to quash in federal court. This asks the judge to invalidate or modify the subpoena based on your privilege claims. Here are the steps involved:

1. Draft the motion to quash, explaining the facts and your legal arguments.
2. File the motion in the court that issued the subpoena, following all formatting rules.
3. Serve the motion on the issuing attorney within the time limit specified in the subpoena.
4. The court will schedule a hearing to allow both sides to argue the motion.
5. The judge will decide whether to quash or modify the subpoena.

Some potential advantages of filing a motion to quash:

• It forces the issuing attorney to justify the subpoena in court.
• The judge can invalidate improper or overbroad subpoena demands.
• It protects privileged information from disclosure.

Drawbacks include the time and legal costs of litigation. The judge may also end up sustaining the subpoena, leaving you back at square one.

Producing a privilege log and letting the judge decide

As another option, you can provide the issuing attorney with a privilege log describing the documents you are withholding. You let the judge rule on any privilege disputes. Key steps include:

1. Create a detailed privilege log listing each document withheld, authors, recipients, dates, and privilege claimed.
2. Produce any non-privileged responsive documents by the deadline.
3. Let the issuing attorney challenge any privilege claims before the judge.
4. Be prepared to defend your privilege claims in court if challenged.

Benefits of this approach:

• It provides key details about withheld documents to the court.
• The judge can rule on disputes document-by-document.
• It may discourage challenges to strong privilege claims.

Downsides are the time required to prepare a detailed log and potential disclosure of privileged information in litigation.

What to do if served with a subpoena for privileged testimony

A federal subpoena may also compel you to testify at a deposition, hearing, or trial. As with documents, you can assert privilege and refuse to answer questions requesting privileged information. Here are tips for responding:

• Review the deposition notice or subpoena for clues on likely areas of questioning.
• Object and briefly explain the basis for privilege in response to any privileged questions.
• Instruct your lawyer to assert privilege more fully on your behalf during the deposition.
• Be prepared for the possibility that you may need to seek a protective order from the court.

Keep in mind that privilege only protects disclosure of confidential communications – it does not allow you refuse to testify altogether. You may need to confer with your attorney during breaks if privilege issues arise.

When is it advisable to get legal help with a subpoena?

Although you can choose to handle compliance with a federal subpoena yourself, consulting a lawyer is advisable in many situations, including:

• The subpoena requests extensive or highly sensitive documents
• You anticipate extensive claims of privilege
• The issuing attorney takes an aggressive stance
• You may have to testify about privileged communications
• You lack time or expertise to respond properly

An experienced civil litigation attorney can advise you on privilege issues, negotiate with the issuing attorney, and handle motions challenging the subpoena when necessary. This can give you invaluable peace of mind.

Consequences of failing to comply with a federal subpoena

While you have legal grounds to withhold privileged documents, you must still comply with the valid portions of a federal subpoena. It is important to understand the consequences of failing to respond:

• The court may hold you in contempt, imposing fines or jail time[6].
• The issuing attorney can file a motion to compel or sanctions motion against you[1].
• You may be legally prohibited from using withheld documents as evidence.
• It harms your credibility and negotiating position.

Assert your legitimate privileges, but comply with the rest of the subpoena to avoid penalties. An attorney can advise you on responding appropriately.

In summary…

Receiving a federal subpoena for privileged information can be daunting. But understanding your rights and options empowers you to handle it properly. Get legal advice when needed,
and remember:

• Carefully review the subpoena to determine exactly what is being requested. Look for unclear or overly broad requests that may encompass privileged information.
• Consider asking the issuing attorney to clarify or narrow the scope of the subpoena if needed. They may be willing to work with you.
• Only assert privileges that clearly apply. Improper claims of privilege can damage your credibility.
• If negotiations fail, act promptly to file a motion to quash or protective order before the deadline.
• Maintain professionalism and don’t take an adversarial stance needlessly – it may backfire.
• Weigh the risks of litigation against the importance of protecting privileges in your situation.
• Keep detailed records of your efforts to comply and communications with the issuing attorney.
• Remember that asserting valid privileges is your legal right – don’t let intimidation sway you.

Dealing with a subpoena for privileged information takes preparation and care. But you have options under federal law. Educate yourself on the process, know your rights, and don’t hesitate to consult an attorney to protect sensitive information. With the right approach, you can get through it smoothly.