Responding to Federal Subpoenas Without Destroying Evidence
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Responding to Federal Subpoenas Without Destroying Evidence
Receiving a federal subpoena can be an intimidating and stressful experience. As an individual or business, you have legal responsibilities when it comes to properly preserving and producing documents requested in a subpoena. Failure to comply could potentially lead to charges of obstruction of justice or contempt of court. This article provides practical guidance on how to lawfully respond to federal subpoenas without inadvertently destroying evidence.
Understanding Federal Subpoenas
A federal subpoena is a writ or order issued by a federal court demanding that an individual or organization produce documents, give testimony, or both. Subpoenas are used by federal agencies like the FBI, SEC, IRS, and Department of Justice during investigations.There are two main types of federal subpoenas:
- Grand Jury Subpoena: Requires producing documents or testifying before a grand jury about a potential crime. Grand juries determine if there is probable cause to issue an indictment.
- Trial Subpoena: Requires producing documents or testifying at a trial about a charged crime. This helps the prosecution or defense make their case.
Once a federal subpoena is issued and properly served to an individual or business, it legally compels compliance. Ignoring or avoiding it can lead to civil or criminal contempt charges.
Document Preservation is Crucial
When you receive a federal subpoena, you must take immediate action to preserve relevant documents and prevent any data destruction. Under federal law like Sarbanes-Oxley, it is illegal to knowingly destroy potential evidence or hide it from investigators.Begin by issuing a legal hold to suspend all normal document destruction policies in your organization. This preserves the status quo and prevents any automatic deletion of emails, texts, files, etc that might be relevant to the federal investigation.You should also immediately gather, secure, and monitor all relevant data sources including:
- Email and instant message archives
- Network file shares and collaboration platforms
- Mobile devices like company-issues smartphones and tablets
- Cloud storage like Dropbox or Box accounts
- Local hard drives of computers, laptops and servers
- Social media pages and activity
- Physical records such as paper documents or photographs
Software and consultants can assist with properly imaging this data for legal hold and backup purposes.
Responding to Requests
Your next step is to appoint a response team to handle collection and review of subpoenaed materials. This helps ensure an efficient, compliant, and legally privileged process. The team should include legal counsel, IT/forensics, and key records custodians.Counsel will evaluate scope and obligations, then negotiate with investigators about production deadlines, formats, etc if anything is unclear or unreasonable. Technical staff will use forensic software to pull responsive data from various sources, while records custodians help provide context around certain documents and communications.The team will also conduct a responsiveness review to identify which materials actually fit within the parameters of the federal subpoena and must be turned over. Other non-relevant documents can be excluded from production.
Avoiding Data Destruction
Throughout the collection and review process, the response team must remain extremely careful not to alter or destroy any potential evidence.Actions to avoid:
- Deleting, overwriting or shredding physical or digital files
- Re-imaging, wiping, or disposing of devices
- Hiding, encrypting or password protecting data
- Disabling system logging or auditing capabilities
- Withholding, omitting or concealing responsive materials
The law prohibits destroying or concealing any documents reasonably anticipated to be relevant to a federal investigation, even if they seem innocuous or mundane. Records custodians should err on the side of retention if they are unsure whether a document is responsive or not.
Producing Documents
Once the response team has identified all relevant materials for production, they should be compiled into a logically organized format for federal investigators.Some best practices around production include:
- Labeling and indexing – Include spreadsheet with description, source, and beginning bates number for each document
- Bates stamping – Number each page sequentially for easy reference
- Format – Provide data in native format if possible, with metadata intact
- Delivery – Use secure FTP site or encrypted physical media to transmit documents
The produced records should contain all requested materials without any gaps, omissions or obfuscations. Certify that a complete and accurate production has been made in order to avoid accusations of hiding or destroying evidence.Keep a copy of the production for reference in case any further actions or supplemental requests are made. Notify counsel immediately if any additional relevant materials are located after production.
Seeking Legal Advice
Responding to federal subpoenas is a complex process with serious legal implications if mishandled. Engaging an experienced attorney is highly recommended when your organization receives a subpoena demanding documents or testimony.Counsel can help to:
- Assess scope and obligations
- Issue legal holds to preserve data
- Negotiate deadlines and production terms
- Lead response team to ensure defensible process
- Assert privileges and protect sensitive information
- Avoid non-compliance penalties through timely complete production
Conclusion
Federal subpoenas should never be ignored, but must be navigated carefully to avoid allegations of evidence spoliation or obstruction of justice. Suspending data destruction, collecting relevant materials, and seeking legal advice allows individuals and companies to comply fully while also protecting their rights and interests during a federal investigation.