Responding to Federal Subpoenas Seeking Proprietary Business Information

Getting a subpoena from the federal government can be scary. You might worry you’re in trouble or that your business secrets could get out. But try to stay calm! Subpoenas are just the government’s way of getting information for an investigation. With the right help, you can protect your business interests.

What is a subpoena?

A subpoena is a court order that requires you to give information to the government¹. It could ask for documents, your testimony in court, or both. Federal agencies like the SEC, FTC, or DOJ use subpoenas to investigate civil and criminal cases.

Subpoenas can be broad. They might seek all documents about a certain topic over several years! But getting one doesn’t mean you’re suspected of wrongdoing. It just means the government thinks you have useful information.

Responding to a subpoena

When you get a subpoena, stay calm. Don’t ignore it, but don’t rush to comply either. Here are some tips:

• Review it carefully. Make sure you understand what information is requested and the deadlines.
• Consult a lawyer. An experienced attorney can help protect your rights.
• Negotiate the scope. Your lawyer may be able to narrow the subpoena so it’s less burdensome.
• Assert privileges. Some information, like trade secrets or attorney-client communications, may be privileged.
• Follow procedures. Only provide information as required by law. Send it to the right agency following proper protocols.
• Keep it confidential. Ask the agency to keep your sensitive information confidential or under seal.

With an attorney’s help, you can produce what’s required while protecting your business interests. Don’t ignore a subpoena, but don’t over-disclose either.

Objecting to a subpoena

If a subpoena seems unreasonable or improper, you can formally object. Work with counsel to file a motion to quash or modify the subpoena. Grounds might include:

• Scope is too broad
• Compliance is unduly burdensome/expensive
• Requested info is irrelevant to the investigation
• Info is confidential/proprietary
• Subpoena violates a statutory or constitutional right

The court reviews objections and may narrow or quash an improper subpoena. But don’t assume your motion will succeed. Federal agencies tend to get what they ask for.

Producing documents

If your subpoena demands documents, review carefully to avoid producing more than necessary. Some tips:

• Only produce business records, not personal files.
• Redact privileged or confidential portions.
• Withhold documents covered by attorney-client privilege.
• Organize files logically and label them clearly.
• Keep records of what you produce, to whom, and when.

Follow up to ensure your sensitive data remains confidential. Seek a protective order if needed.

Complying with a subpoena

If you must comply, do it right:

• Meet deadlines – lateness looks bad.
• Send documents securely to the right recipient.
• Clearly label privileged docs “Confidential.”
• Keep a record of what you send and when.
• Get a signed confidentiality agreement if possible.
• Follow up if your info isn’t kept secure.

Mistakes can lead to sanctions or liability. So take compliance seriously and protect your rights.

Testifying

If a subpoena orders you to testify:

• Consult your attorney to prepare.
• Tell the truth – lying is a crime!
• Answer only what you’re asked.
• Don’t volunteer extra information.
• If unsure, ask to confer with counsel.
• Request a transcript to review later.

With preparation, you can provide truthful testimony without revealing unnecessary business details.

Penalties

There can be serious consequences for defying a subpoena, like:

• Fines or imprisonment for contempt of court
• Lawsuits to enforce compliance
• Adverse legal presumptions against you
• Reputational harm

So don’t ignore a subpoena! But do proceed cautiously to protect your rights. A skilled attorney can help you avoid penalties.

Getting legal help

Don’t go it alone when responding to a federal subpoena. An experienced attorney can guide you to:

• Assess risks and obligations
• Negotiate scope and deadlines
• Raise proper objections
• Assert privileges and protections
• Prevent disclosure of trade secrets
• Avoid penalties for non-compliance

With legal help, you can appropriately respond to the subpoena while limiting damage to your business. Don’t leave your company’s interests unprotected.

In summary…

Federal subpoenas can be intimidating, but staying calm and seeking legal help allows you to respond appropriately. Work with counsel to review the subpoena, object if warranted, produce required information, and testify if needed – all while protecting confidential business details. With the right approach, you can get through the process with minimal disruption to your company.