Responding to Federal Subpoenas for Internal Investigations

Responding to Federal Subpoenas for Internal Investigations

Getting a subpoena from the federal government can be scary. You might feel anxious or overwhelmed about how to respond. This article will walk you through some tips for responding to federal subpoenas for internal investigations. We’ll cover what to do when you get a subpoena, strategies for reviewing documents, protecting privileged information, and more. Our goal is to make this process less intimidating so you can respond appropriately.

What to Do When You Get a Subpoena

The first step is don’t panic. Take a breath. Read through the subpoena carefully so you understand what information is being requested. Make sure to note the deadline for responding. Then, gather together an internal team to help you collect documents and craft your response strategy. This team might include your general counsel, records manager, IT professionals, and any employees named in the subpoena.

Next, contact an experienced attorney. Handling federal subpoenas requires specialized legal knowledge. An attorney can advise you on response strategies and make sure you avoid any missteps. They can interact with investigators on your behalf. Having a lawyer in your corner will give you peace of mind.

You’ll also want to notify your company’s executives and board members about the subpoena. Make sure leadership is looped in on your response plan. Failing to disclose a subpoena could cause bigger issues down the road.

Finally, don’t destroy any relevant documents. Doing so could open you up to obstruction charges. Preserve all materials that may be responsive to the subpoena.

Reviewing Documents

One of the biggest challenges is reviewing all the information requested and identifying what is responsive. The subpoena may require sifting through thousands of documents from multiple sources. Here are some tips to make this process more manageable:

• Get organized early. Come up with a system for collecting, reviewing, and producing documents.
• Use technology like predictive coding and analytics to identify relevant documents.
• Designate point persons in each department to gather materials.
• Start with electronic documents, as they are easier to search.
• Use keyword searches, date filters, and other tools to narrow down the review pool.
• Create a timeline of key events to provide context.
• Document your process. Keep a record of search criteria, sources checked, and reviewers.

Moving methodically through all potentially relevant documents takes time but is essential. Rushing could mean missing key information.

Protecting Privileged Information

Some responsive documents may contain privileged or confidential information. As a third party, you can object to producing these documents. However, you must assert and explain your objections. Here are some common privileges:

• Attorney-client privilege – Applies to confidential attorney-client communications.
• Work product doctrine – Protects documents prepared in anticipation of litigation.
• Trade secrets – Proprietary business information that derives value from secrecy.

To preserve these privileges, be sure to have an attorney review any questionable documents. You may also need to create a privilege log describing withheld documents so investigators can assess your objections.

Producing Documents

Once you’ve identified responsive material, it’s time to produce it. Some tips here:

• Organize documents clearly. Use folders, indexes, and tags to identify sources.
• Provide documents in their native format whenever possible.
• Produce electronic documents in a standard format like TIFF or PDF.
• Include metadata and make load files for e-discovery.
• Use Bates numbering to label and track produced documents.
• Send copies, not originals. Keep originals in a safe place.

Following best practices for production shows your willingness to cooperate fully. Be sure to meet the deadline or request an extension if needed.

Appearing for Testimony

Some subpoenas require you to testify before federal investigators. This can feel intimidating but preparation is key. Here are some strategies if you must appear:

• Tell the truth. Lying can lead to criminal charges.
• Review relevant documents and refresh your memory beforehand.
• Stick to facts you know firsthand. Don’t speculate.
• Listen carefully to each question. Seek clarification if needed.
• If you don’t know the answer, say so. Don’t guess.
• Remain calm and professional. Avoid arguing.

You have the right to have counsel present during questioning. Your attorney can object to inappropriate questions. Though nerves are understandable, sticking to the facts will get you through.

Following Up After Response

Your responsibilities don’t end once you’ve responded. Follow up with investigators to confirm receipt of documents. Offer to answer any additional questions. Ask for status updates on the investigation and whether further response is needed. If the scope changes, be prepared to collect and produce more documents.

You should also circle back with company leadership. Brief them on what materials you produced and the testimony given. Discuss any vulnerabilities that were uncovered and develop a plan to address them. Proper follow-up and communication ensures the company learns from the experience.

Avoiding Common Missteps

While responding to federal subpoenas, some common mistakes could create bigger problems. Be sure to avoid:

• • Withholding, destroying, or altering subpoenaed documents.
  • Making false or misleading statements during testimony.
  • Concealing knowledge of wrongdoing by the company or employees.
  • Failing to assert privileges and protections for sensitive documents.
  • Obstructing the investigation or refusing to comply.
  • Failing to meet deadlines. The subpoena will specify a date for responding. Missing this deadline could lead to contempt charges.
  • Refusing to comply with or obstructing the subpoena. You must comply fully and in good faith. Stonewalling investigators invites legal trouble.
  • Withholding relevant materials. Investigators will follow up if they think you are hiding documents.
  • Making overly broad or improper objections. Claiming overly broad privileges may draw scrutiny.
  • Producing disorganized or unusable documents. Respond clearly and completely.
  • Being uncooperative during testimony. Answer questions directly and honestly.

The stakes are high when responding to federal subpoenas. Work diligently to produce all relevant materials on time. Cooperate fully without compromising legal protections or company interests. Most importantly, engage experienced counsel to guide you through the process.

Handling a subpoena is complex, but taking methodical, careful steps can help you satisfy investigators while protecting sensitive information. With thorough preparation and an attorney’s advice, you can respond appropriately.

References

Comer, James and Grassley, Chuck. “Comer and Grassley on FBI Failing to Comply with Subpoena Deadline.” United States House Committee on Oversight and Accountability, 10 May 2023, oversight.house.gov.

“5th Amendment US Constitution–Rights of Persons.” GovInfo, govinfo.gov.

“What are the deadlines for responding to a Subpoena?” Office of the Chancellor, University of California, Berkeley, 1 Jan. 2020, chancellor.berkeley.edu.

Durham, John. “Report on Matters Related to Intelligence Activities and Investigations Arising Out of the 2016 Presidential Campaigns.” Department of Justice, 12 May 2023, justice.gov.

Title 18 – CRIMES AND OFFENSES.” PA General Assembly, 28 Feb. 2023, legis.state.pa.us.

scramblis.html. GitHub, github.com.