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Shielding Trade Secrets When Responding to Federal Subpoenas

Shielding Trade Secrets When Responding to Federal Subpoenas

Dealing with a federal subpoena requesting sensitive company information can be really stressful. Like, you want to comply with the law but you also can’t just hand over all your trade secrets. It’s a tricky situation for sure. This article walks through some tips on how companies can protect sensitive info when responding to federal subpoenas.

Understanding Federal Subpoenas

First up, what exactly is a federal subpoena? Basically it’s a request for information as part of a federal investigation or case. The subpoena will say what info needs to be turned over and when. If you don’t comply, you could be held in contempt of court. So yeah, you gotta take it seriously.Federal agencies like the SEC, FTC, DOJ etc. have power to issue subpoenas to further their investigations. And these aren’t like trial subpoenas – they happen in the evidence gathering phase way before any trial.

Options for Protecting Trade Secrets

When you get hit with a federal subpoena asking for sensitive trade secrets, you have a few options:

File a Motion to Quash

First step is to see if you can get the subpoena thrown out or modified by filing a motion to quash. This basically argues the subpoena is improper or unreasonable. Grounds could be:

• Requested info isn’t relevant to the investigation
• Subpoena imposes undue burden (too expensive, time-consuming etc to comply)
• Subpoena seeks privileged documents

If the motion succeeds, the subpoena could be narrowed or tossed completely. But don’t bank on this – the bar is pretty high.

Ask for Protective Order

If the subpoena stands, ask the court for a protective order to cover any confidential/proprietary info you produce. This restricts access to authorized people only.Also request “attorneys eyes only” protection so only the outside lawyers can view sensitive materials, not the actual government agency.

Provide Redacted Documents

Carefully go through all materials and redact sections that would reveal key trade secrets while leaving other info intact. Provide log detailing all redactions.But don’t go overboard here – agencies may challenge excessive redactions. Be prepared to defend why each bit absolutely needs to stay secret.

Negotiate Compromise

See if you can negotiate middle ground with the agency. Maybe agree to provide oral briefings or summaries instead of docs, or let them view sensitive materials on-site without retaining copies. Get creative but reasonable.If talks fail, the agency may push for the full subpoena in court. So try to get something in writing locking in any compromises.

Handling Document Production

If you do end up having to produce documents, take steps to minimize risks:

• Watermark – Embed unique watermarks on all pages so if docs do leak, you can trace the source.
• Numbering – Number each produced document for tracking. Keep your own index mapping numbers back to documents.
• No Originals – Only provide copies, never original documents.
• Affidavit – Include sworn statement that all confidential info has been removed.
• Follow Up – After production, follow up to ensure proper restricted access and usage of materials.

Getting Help

Dealing with federal subpoenas is tricky, specialized business. So make sure to loop in legal counsel with experience fighting these things. Some options:

• In-House Counsel – Utilize expertise of your internal legal team if available.
• Outside Counsel – Hire an outside law firm with specific background here. Key is finding lawyers who’ve worked on the agency’s side before.
• Legal Hotlines – Many trade groups and business organizations have legal hotlines their members can tap.

Having the right legal muscle on your side can make a huge difference in protecting sensitive trade secrets when facing federal subpoenas. Don’t hesitate to call in reinforcements.

What About Gag Orders?

One extra complication is gag orders. Sometimes federal subpoenas come with these attached, stopping you from disclosing or discussing the subpoena itself.This obviously makes getting help way tougher. In these cases, you’ll need lawyers with security clearance to view the subpoena. Or those willing to give general guidance without even viewing it due to the gag.So if you’re subject to a gag order, make that clear upfront when seeking legal assistance. It’ll help narrow options to lawyers who can actually help.

Recap of Key Tips

Responding to federal subpoenas seeking trade secrets is high stakes. To boost your protection, be sure to:

• Seek motions narrowing subpoena scope
• Request protective orders for any sensitive materials
• Provide redacted docs where possible
• Negotiate compromises on info provided
• Take precautions when producing documents
• Secure knowledgeable legal counsel

Staying calm and taking the right steps is crucial when your trade secrets wind up in the government’s crosshairs. Lean on all available resources so you can responsibly comply while also safeguarding your competitive advantage.

Resources

For more help with federal subpoenas, check out these useful links:Articles:

• What is a Federal Subpoena? – Overview of federal subpoenas
• Responding to Government Subpoenas – Avvo guide
• Trade Secret Protection – ACC guide for in-house counsel

Lawyer Directories:

• Avvo – Search for local lawyers by practice area
• Martindale – Another lawyer directory

Reddit Communities:

• r/legaladvice
• r/law