Responding to Federal Subpoenas for Business Records or Documents

Responding to Federal Subpoenas for Business Records or Documents

When a business receives a federal subpoena requesting records or documents, it can be intimidating. Many companies don’t know how to properly respond. This article provides guidance on complying with federal subpoenas seeking business information.

What is a Federal Subpoena?

A federal subpoena orders someone to produce documents, records, or other tangible items. It is issued under authority of the federal courts. Federal subpoenas are used in both civil and criminal cases [1].

For example, in a federal lawsuit between Company A and Company B, Company A could subpoena records from Company C. Or during a federal criminal investigation, the government could subpoena documents from a business.

Ignoring a federal subpoena can lead to contempt of court charges. Fines and even jail time are possible. So companies must take subpoenas seriously.

Assembling Documents and Records

The first step is gathering all materials requested by the subpoena. This may require searching files, computers, cell phones, and other sources of business information.

Ideally, documents should be produced in their original form, organized as kept in the ordinary course of business [1]. However, if needed, documents can be organized and labeled to correspond with the subpoena’s specific requests.

All relevant materials should be collected, including electronic documents like emails, texts, and digital files. Both current and archived records may need to be searched if specified.

Reviewing for Privileged or Confidential Information

Once materials are gathered, they must be carefully reviewed for privileged or confidential information. This includes trade secrets, attorney-client communications, and other protected documents [2].

An attorney can identify items that may be withheld due to privilege. A detailed log should be created describing any documents being withheld and the reasons why.

For sensitive materials that must be produced, a protective order can be requested. This limits disclosure to the case and prevents using them outside of litigation.

Bates Stamping and Numbering

Before production, each page should be marked with a unique Bates stamp number for identification [2]. This allows easy reference to specific documents.

Bates stamp numbers run sequentially, like DOC000001, DOC000002, etc. They should be placed in the same location on each page.

Numbering documents also facilitates creating a detailed index describing what is being produced. The index should reference the Bates stamp number for each item.

Making Copies

The original assembled documents should not be produced. Only copies should be provided in response to a subpoena [4]. The company must maintain the originals.

Copies can be made electronically or in paper format. Provide copies in the format specified by the subpoena. If no format is indicated, produce copies in the same form as the original documents.

Organize the copies logically, such as grouping by topic or chronologically. This facilitates review by the party issuing the subpoena.

Producing Documents and Records

Copies of responsive materials should be sent by the due date and location noted in the subpoena. Include the detailed index describing what is being produced.

If any documents were withheld for privilege, the privilege log should be produced. This allows the subpoena issuer to assess claims of privilege.

The company must retain the original assembled documents in case future review is needed, such as if a dispute arises over production.

Objecting to All or Part of the Subpoena

If a subpoena seems improper or unduly burdensome, prompt objections can be made [4]. Reasons to object include:

• The subpoena requests privileged information
• Complying would be unreasonably expensive/difficult
• The subpoena seeks materials irrelevant to the case
• The subpoena fails to allow reasonable time to respond
• The subpoena was not properly served

Objections should be filed quickly, such as within 2 weeks. Support each objection with specific facts and legal citations. Propose reasonable modifications to the subpoena.

If negotiations fail, ask the court to quash or modify the improper parts of the subpoena. But valid portions must still be obeyed to avoid contempt charges.

Get Legal Counsel

Receiving a federal subpoena raises complex legal issues. Consult an attorney to ensure proper response while protecting privileges [4].

Experienced counsel can strategically object to improper subpoena requests. They can also manage communications and negotiations with the issuing party.

For any disputed issues, a lawyer can file motions asking the court to take certain actions. There are several types of motions that may help resolve or narrow the issues in a case:

• Motion for Summary Judgment – Asks the court to decide the case or parts of the case without a trial because there are no factual disputes. If granted, it can resolve some or all of the issues in the case. [4]
• Motion to Dismiss – Asks the court to dismiss certain claims or the entire case for legal or procedural reasons. If granted on some claims, it narrows the issues for trial. [5]
• Motion in Limine – Asks the court to exclude certain evidence or testimony at trial. Limiting evidence can narrow the issues the jury or judge must consider. [6]
• Motion to Compel – Asks the court to order the other party to respond to discovery requests or comply with court orders. Can help obtain evidence needed to prove claims.
• Motion to Amend – Asks the court to allow changes to the pleadings, such as correcting information or adding claims or defenses. Amending pleadings can significantly alter the case issues.

There are strict procedural rules for filing motions, such as deadlines and page limits. [1][2][3] The other party gets to oppose the motion, and there may be a court hearing to decide the issue.

Motions require legal expertise to prepare. An attorney can advise which motions to file and represent you in arguing to the judge. Motions are an important tool for shaping the case and controlling the issues the court must decide.

Citations

[1] https://nycourts.gov/courthelp/goingtocourt/motionsOSC.shtml [2] https://www.nycourts.gov/courts/nyc/civil/motions.shtml[3] https://www.law.cornell.edu/rules/frcp/rule_11 [4] https://www.law.cornell.edu/rules/frcp/rule_56[5] https://www.civillawselfhelpcenter.org/self-help/lawsuits-for-money/pre-trial-stage-filing-and-opposing-motions/246-filing-motions-to-resolve-the-case-or-narrow-issues[6] https://www.justice.gov/usao/justice-101/glossary [Citation for motion to compel]