Options When a Federal Subpoena Requests Privileged Information

Options When a Federal Subpoena Requests Privileged Information

Receiving a federal subpoena requesting privileged information can be super stressful and confusing. As a regular person, you might not totally get your rights and responsibilities when it comes to following a subpoena. This article will walk you through the key things you need to know and possible choices when dealing with a federal subpoena looking for privileged documents or testimony.

What is a federal subpoena?

A federal subpoena is a legal order requiring you to provide information to a federal agency or court. There are two main types of federal subpoenas:

• A subpoena ad testificandum orders you to testify as a witness
• A subpoena duces tecum orders you to produce documents, records, or physical evidence

Federal subpoenas are issued under the authority of Federal Rule of Civil Procedure 45 or Federal Rule of Criminal Procedure 17. They can be used in both civil and criminal cases. Some key things to know about federal subpoenas:

• You are legally required to comply unless you have a valid legal objection
• There are penalties for failing to comply, like being held in contempt of court
• You may be able to modify or quash the subpoena if it is overbroad or seeks privileged information

What is privileged information?

Privileged information is material that is protected from disclosure during legal proceedings. There are a few main types of privileges:

• Attorney-client privilege – Protects confidential communications between an attorney and client made for the purpose of legal advice
• Doctor-patient privilege – Protects medical information patients reveal to healthcare providers
• Spousal privilege – Protects private communications between spouses
• Clergy-penitent privilege – Protects spiritual communications with a religious leader

If a subpoena requests privileged information, you may be able to object and withhold it. But you still have to comply with the rest of the subpoena.

Your options when facing a subpoena for privileged information

Here are some potential courses of action if you get a federal subpoena requesting privileged documents or testimony:

1. Assert your legitimate privileges – You can object to producing any information protected by a valid privilege. But you must expressly state what information is being withheld and the exact privilege being claimed.
2. Move to quash or modify the subpoena – If the subpoena is overbroad or seeks a lot of non-relevant privileged information, you can file a motion to quash it entirely or modify it to be more limited.
3. Negotiate with the issuing party – Contact the attorney or agency who issued the subpoena to see if you can agree on a reasonable scope of production.
4. Comply regarding non-privileged information – Even if you object to producing privileged material, comply with the rest of the subpoena to avoid being penalized.
5. Get legal help – Consider hiring an attorney to advise you on properly responding to the subpoena and asserting any privileges.

In summary, you have options under federal law if a subpoena requests privileged documents or testimony. Carefully review what is being requested, determine if any privileges apply, and be prepared to specifically object to producing that privileged information. But comply with the rest of the subpoena to avoid penalties for non-compliance.

How to properly assert privilege in response to a subpoena

If you need to claim privilege in response to a federal subpoena, here are some key steps to take:

1. State your objection clearly – Provide written notice identifying what specific information you are withholding based on a claim of privilege.
2. Describe the nature of the privilege – Explain exactly what privilege applies, such as attorney-client privilege, doctor-patient privilege, etc.
3. Follow court rules – Abide by the process set out in FRCP 45 for asserting privileges and challenging subpoenas.
4. Avoid general objections – Blanket objections to the entire subpoena may be rejected. Tailor your objection only to the privileged information.
5. Support your claim – Be prepared to explain to the court why the privilege applies if your claim is challenged.
6. Get legal help – Consulting a lawyer can help ensure you properly assert privileges and comply with court rules.

With the right approach, you can minimize disclosure of privileged materials responsive to a federal subpoena. But you must take care to specifically object to only the information covered by a legitimate privilege.

What happens if you fail to comply with a federal subpoena?

If you disobey a federal subpoena and refuse to comply, you could face serious penalties including:

• Contempt of court – Fines, jail time, or other sanctions for defying a court order.
• Obstruction charges – Criminal liability if you obstruct a federal investigation.
• Adverse inferences – The court assuming the withheld evidence was unfavorable to you.
• Loss of employment – Government and many private employers will terminate workers who fail to comply with valid subpoenas related to their work.

In civil cases, the party seeking your testimony or documents can also ask the court for an order compelling you to comply. Overall, it is risky not to comply with a federal subpoena unless you have a very strong legal objection.

Can attorney-client privilege protect documents subpoenaed from a lawyer?

Yes, attorney-client privilege may allow lawyers to refuse to produce privileged communications when subpoenaed in federal criminal or civil matters. But there are some caveats:

• The privilege only covers confidential communications between an attorney and client for legal advice.
• It can be overcome if the crime-fraud exception applies, negating the privilege.
• Only the client holds the privilege – lawyers cannot refuse to comply if the client waives it.
• Fee arrangements may not be protected, depending on the circumstances.

So attorney-client privilege can be asserted in response to a subpoena, but the protection is limited. Lawyers should carefully review what is requested and object only to information covered by this narrow privilege.

Using privilege to avoid testifying when subpoenaed as a witness

If you are subpoenaed to testify as a witness in a federal case, privileges allow you to refuse to answer certain questions:

• Assert privilege in response to specific questions asked at the proceeding.
• The judge will rule on whether the privilege applies to that testimony.
• You may be ordered to testify if the judge rejects your privilege claim.
• Refusing to comply can lead to contempt charges.

So while privilege provides some protection, you must appear when subpoenaed as a witness and selectively assert privileges in response to particular testimony. You cannot altogether refuse to appear.

Subpoenaing privileged information from companies

When a company receives a federal subpoena requesting privileged information, unique issues come up:

• The company must ensure privileges are asserted properly across the organization.
• Employees may need special handling to maintain privileges like attorney-client privilege.
• The company may need to do an internal investigation to gather responsive information.
• Corporate counsel will likely lead the subpoena response effort.

A coordinated strategy across management, in-house counsel, and outside lawyers is key to properly protecting privileges when a business is served with a federal subpoena.

Other objections to providing information in response to a federal subpoena

Beyond privileges, other legal grounds may also allow you to refuse to comply with all or part of a federal subpoena:

• The subpoena seeks information protected by the First Amendment, such as freedom of association.
• It requests confidential commercial information protected by trade secret laws.
• It is overbroad, vague, or unduly burdensome.
• The subpoena was not properly served.
• It requires you to violate another law or contract.

If a subpoena infringes on your legal rights, be sure to specifically object on all applicable grounds. Do not simply ignore the subpoena.

Responding to federal subpoenas seeking electronically stored information

Federal subpoenas today often request electronically stored information (ESI) such as emails, texts, and computer files. Some tips for responding:

• Take steps to avoid spoliation – don’t delete relevant ESI when on notice.
• Assert privilege with care – metadata may reveal otherwise privileged information.
• Comply with technical production requirements – provide ESI in specified formats.
• Negotiate the scope of ESI production – it can be burdensome to produce all ESI.
• Review ESI collection procedures – improper keyword searches can overlook relevant ESI.

ESI creates unique privilege and compliance issues when responding to federal subpoenas. Legal guidance tailored to ESI may be needed.

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:

• You must comply with valid subpoenas, unless privilege applies.
• Assert privileges clearly and appropriately.
• Seek to quash or modify overbroad subpoenas.
• Produce any non-privileged information requested.
• Obey court rules for challenging subpoenas.

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 get experienced legal help to ensure an appropriate response.