Responding to Federal Subpoenas Seeking Proprietary Business Information

Responding to Federal Subpoenas Seeking Proprietary Business Information

Getting a subpoena from the federal government can be intimidating. But there are things you can do to respond appropriately and protect your business interests. This article provides practical tips and information for companies dealing with federal subpoenas requesting proprietary or confidential information.

Take a Deep Breath

The first thing to do when you get a federal subpoena is—don’t panic! Take a deep breath. Getting a subpoena does not necessarily mean you’re in legal trouble. Federal agencies issue subpoenas to companies as part of all kinds of routine investigations. So stay calm and get organized.

Notify Your Team

Once you’ve received a federal subpoena, notify your legal team right away. This includes your general counsel, in-house lawyers, and any outside counsel you work with regularly. You may need their help responding. Also loop in any corporate officers or executives who need to know about the subpoena.

Review the Subpoena Carefully

Read through the subpoena closely. Make note of specifically what information or documents the government is requesting. Also pay attention to the deadlines for responding. Missing a deadline could lead to court sanctions. Circle any deadlines on your calendar and set reminders.

Gather Responsive Documents

Now comes the document collection process. This will likely involve searching computer files, company servers, cell phones, paper records, and other sources. Gather up everything that might be responsive to the subpoena request. Don’t hold anything back at this stage—better to collect too much than too little.

Assess Privilege Issues

Once you’ve collected documents, you need to determine if any are protected by attorney-client privilege, work product doctrine, or other privileges or protections. Flag any privileged docs so you can withhold them if necessary. You may need to create a privilege log describing withheld documents.

Evaluate Your Response Strategy

Now you can decide how to proceed. Will you fully comply with the subpoena? Seek modifications? File objections? Factors to consider include:

• How sensitive or confidential the information is
• How burdensome searching and producing will be
• Whether you have valid grounds for objecting
• How you want to position your company vis-a-vis the government

Negotiate With the Agency

Before formally responding, try negotiating with the federal agency issuing the subpoena. Explain concerns about confidentiality or burden. Often the agency will agree to reasonable modifications, like narrowing the request or entering a protective order.

Produce Responsive Documents

If you decide to comply, review the subpoena’s instructions about format, organization, and delivery of documents. Federal courts now prefer electronic production. Bates stamp and slip sheet documents. Draft privilege log if applicable.

Make Objections

If you want to object to all or part of the subpoena, you must make written objections before the compliance deadline. Courts disfavor untimely objections. State specific grounds for each objection. Common reasons include undue burden, lack of relevance, and privilege.

Move to Quash

In addition to objections, you can file a motion to quash with the federal court overseeing compliance. Grounds for quashing include requesting trade secrets, violating confidentiality, or exceeding allowable scope. Motions to quash must be timely. Courts will balance burden on you versus government need.

Comply Subject to Objections

Often companies comply with subpoenas while simultaneously lodging objections. This avoids contempt allegations. But make sure to preserve all objections and don’t waive any rights. Get a signed confidentiality order if possible.

Follow Up After Production

Your work doesn’t end once you’ve produced documents. Follow up with the government about next steps in the investigation and your company’s status. Seek return of docs or destruction when matter concludes. Monitoring the case may reveal additional actions to take to protect your interests.

When In Doubt, Get Help

Responding to federal subpoenas is tricky business. Having experienced counsel assist you can make the process smoother and help safeguard your company’s rights. The lawyers at Smith & Jones LLP have deep expertise helping clients handle federal subpoenas. Contact us for a free consultation.

Sources: https://www.federallawyers.com/criminal-defense/responding-to-federal-subpoenas-seeking-proprietary-business-information-2/ https://www.weil.com/~/media/files/pdfs/2018/subpoenas-responding-to-a-subpoena-federal.pdf https://www.federallawyers.com/criminal-defense/responding-to-federal-subpoenas-for-business-records-or-documents/ https://www.law.cornell.edu/rules/frcp/rule_45 https://www.klgates.com/Litigation-Minute-Responding-to-Third-Party-Subpoenas-10-15-2020 https://www.logikcull.com/learning/ultimate-guide/third-party-subpoena-response