Responding to Federal Subpoenas for Internal Investigations

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Last Updated on: 10th December 2023, 07:40 pm

Responding to Federal Subpoenas for Internal Investigations

Getting a subpoena from the federal government can be intimidating. But with some basic knowledge, you can properly respond and protect yourself and your company. This article will walk you through tips for responding to federal subpoenas related to internal investigations.

What is a federal subpoena?

A federal subpoena is a request for documents, testimony, or other information related to a federal investigation or proceeding. It is issued by a federal agency like the Department of Justice (DOJ) or Federal Trade Commission (FTC).

When you get a subpoena, you are legally required to provide the requested information or face penalties. So you need to take it seriously. But you also have certain rights and protections.

Tips for responding to a federal subpoena

Here are some tips if you receive a federal subpoena related to an internal investigation:

• Don’t ignore it. You must respond, even if you think the subpoena is improper or too broad.
• Meet the deadlines. Subpoenas include deadlines for responding. Missing them can lead to court enforcement actions.
• Hire an attorney. An experienced federal defense lawyer can help protect your rights.
• Negotiate the scope. Your attorney may be able to negotiate limitations on what you need to produce.
• Assert privileges. Certain materials, like attorney-client communications, may be privileged.
• Protect sensitive information. Get confidentiality agreements to protect trade secrets.
• Be careful with interviews. Having counsel present can prevent statements being used against you.
• Preserve documents. Take steps to avoid spoliation allegations.
• Conduct a thorough search. Federal agencies expect a complete search for responsive materials.
• Carefully review responses. Scrutinize all documents before production to avoid waivers.

Common federal subpoena defenses

In some cases, you may be able to challenge or resist a federal subpoena. Here are some potential defenses:

• Lack of jurisdiction – The agency issuing the subpoena may lack authority over you or the subject matter.
• Improper service – You may not have been properly served with the subpoena.
• Unreasonable breadth – The subpoena may request materials irrelevant to the investigation.
• Privileged information – Attorney-client and other privileges allow withholding certain materials.
• Trade secrets – You may fight disclosure of confidential business information.
• Self-incrimination – The Fifth Amendment protects against self-incriminating disclosures.
• Non-compliance sanctions – You can argue penalties for non-compliance are improper.

An experienced attorney can assess whether these or other defenses may apply in your case.

Enforcing compliance with subpoenas

If you fail to properly respond to a federal subpoena, the agency can take you to court to enforce compliance. This can lead to substantial penalties.

For example, the FTC aggressively enforces subpoenas and civil investigative demands (CIDs) related to investigations. Ignoring deadlines or providing incomplete responses often results in federal court actions.

In recent cases, the FTC has obtained court orders requiring compliance with subpoenas issued to major oil companies and other large corporations.

Penalties for non-compliance can include:

• Fines, which can reach $100,000-$500,000 for civil contempt.
• Imprisonment for criminal contempt.
• Reimbursing the government’s costs for enforcement actions.
• Adverse inferences in litigation.
• Exclusion of evidence.

So carefully follow the subpoena requirements or negotiate modifications. Don’t ignore subpoenas.

Practical tips for responding

Here are some practical tips for properly responding to a federal subpoena:

• Designate one person to oversee compliance. Having a single point of contact helps avoid miscommunications.
• Meet and confer with the agency. Discuss ways to limit the scope and burden.
• Get organized immediately. Identify document custodians and start your search.
• Document your process. Track your search efforts in case your diligence is challenged.
• Stay on top of deadlines. Calendar all due dates to avoid missing them.
• Be cooperative. While protecting rights, strive to demonstrate good faith cooperation.
• Follow instructions carefully. Comply precisely with production specifications.
• Keep the agency updated. Promptly inform them of any issues that arise.

Getting help responding to subpoenas

Responding to federal subpoenas can be complex, with severe consequences for non-compliance. Having experienced counsel assist you can be critical.

Federal defense lawyers regularly help clients handle subpoenas from agencies like the DOJ and FTC. They understand the rules and strategies for properly responding. And they work to protect sensitive information while demonstrating cooperation.

So don’t go it alone. Get advice from a lawyer experienced with federal subpoenas. They can guide you through the process and give you the best chance of resolving the investigation with minimal disruption to your business.

With the right help, you can get through a federal subpoena efficiently and protect your interests. Reach out to a knowledgeable federal defense attorney right away if you receive a subpoena demanding documents or information.