Responding to Federal Subpoenas as a Whistleblower or Anonymous Source

Responding to Federal Subpoenas as a Whistleblower or Anonymous Source

Being a whistleblower or anonymous source can be scary. You may have important information about wrongdoing that the public needs to know. But coming forward could put your job, safety, or reputation at risk. If federal investigators want to talk to you or get documents from you, it’s understandable to have concerns.

This article explains how federal subpoenas work and what rights you have if you receive one as a whistleblower or anonymous source. We’ll cover when you can challenge a subpoena, protections for confidentiality, and strategies to minimize risks.

What is a Federal Subpoena?

A subpoena is a legal demand for information. It requires you to testify, produce documents, or both. Federal agencies can issue subpoenas during investigations. For example, the SEC uses subpoenas to get evidence when investigating securities fraud.

Some key facts about federal subpoenas:

• You must comply unless you get the subpoena withdrawn or modified
• Non-compliance can lead to civil or criminal contempt sanctions
• Subpoenas must be properly authorized and follow procedural rules

In other words, you can’t just ignore a subpoena. But there are ways to fight back if a subpoena seems improper or overbroad.

When Can a Federal Subpoena Be Challenged?

The federal rules provide important protections if you want to challenge a subpoena. Here are common reasons whistleblowers or anonymous sources might want to fight back:

Confidentiality Concerns

If a subpoena could reveal your identity as a confidential source, you may be able to get it quashed or modified. For example, in Silkwood v. Kerr-McGee, a court prevented the FBI from accessing a documentary filmmaker’s confidential sources.

Overly Burdensome

If a subpoena would be unreasonably expensive or time-consuming to comply with, you may be able to get it narrowed. For example, limiting the date range of requested documents.

Privileged Information

Subpoenas cannot override certain privileges like attorney-client privilege. You can refuse to provide privileged documents or testimony.

Outside Agency’s Jurisdiction

Agencies can only subpoena information relevant to matters within their authority. For example, the SEC cannot subpoena your personal tax returns without good cause.

In general, talk to a lawyer about challenging a subpoena. You can file a motion to quash or modify it. The court reviews the motion and decides whether to block or limit the subpoena.

Protecting Confidential Sources

If you provided information anonymously, revealing your identity could have devastating consequences. Fortunately, the law recognizes the importance of confidential sources. Here are some key protections:

Reporter’s Privilege

Many courts have recognized a qualified privilege for journalists to protect their anonymous sources. This isn’t absolute immunity, but it requires the subpoenaing party to show a compelling need for the identity.

Whistleblower Laws

Some federal whistleblower laws expressly prohibit disclosing a whistleblower’s identity without consent. For example, the SEC whistleblower program allows anonymous tips.

Motions to Quash

Even without a statutory shield law, sources can often get a subpoena quashed by emphasizing the chilling effect on future whistleblowers. For example, in NLRB v. Robbins Tire & Rubber Co., the Supreme Court recognized this policy argument.

Talk to an attorney to ensure your confidentiality is protected to the full extent possible under the law.

Strategies for Whistleblowers

Here are some best practices for whistleblowers dealing with subpoenas:

• Consult a lawyer experienced with whistleblower cases
• Negotiate the scope of documents and testimony
• Request confidentiality for any disclosures
• Offer an oral briefing instead of documents
• Prioritize your safety and preventing retaliation

While you have rights, the law does not make ignoring subpoenas easy – especially if you want to remain anonymous. This can be very challenging to navigate. Having an attorney experienced with whistleblower cases is extremely valuable.

What Happens If You Don’t Comply?

If you ignore or defy a federal subpoena without getting it quashed or modified, you could face contempt of court charges. This can potentially lead to:

• Fines or imprisonment
• Reputational harm
• Termination of employment

In other words, simply disregarding a subpoena is not advisable. Work with counsel to protect your rights while also avoiding sanctions.

Conclusion

Being subpoenaed as a whistleblower or anonymous source can be scary. But you have protections under the law. With help from an experienced attorney, you can often fight back against overbroad subpoenas – especially ones that could reveal confidential sources.

The most important thing is making sure potential whistleblowers aren’t deterred from coming forward. Federal agencies have investigative power, but courts recognize that has to be balanced with protecting free speech and the free flow of information to the public.

If you have important information about misconduct that the public should know about, reach out to a lawyer to discuss the best plan for bringing it to light – while also protecting your rights.

References

Here are the references cited in this article:

• Reporters’ Privilege Legislation: Preserving Effective Federal Law Enforcement
• Fox News pushes to quash subpoena that could unmask source
• Federal Rules of Civil Procedure Rule 45 – Subpoena
• CFTC Whistleblower Rules 17 CFR 165
• 17 CFR 165 — Whistleblower Rules
• Federal Reserve Policy Statement on Whistleblower Claims