If you receive a federal subpoena, you probably have some questions. Maybe you’re not sure why you’ve been subpoenaed, what information they’re seeking, or whether you can withhold any privileged records. You might even be wondering if you can just ignore the subpoena entirely. Maybe you don’t want to assist the government with their investigation, or you’re concerned about the consequences of cooperating, and you’re rather just hope the problem goes away.
In a nutshell, ignoring a federal subpoena is a bad idea. You are required by law to respond to the subpoena. When you ignore a subpoena, you’re actually creating more questions for the prosecution. The courts will want to know why you chose not to comply and what you’re hiding. You could also be held in contempt by the court.
There are significant risks to ignoring a federal subpoena, without the likelihood or rewards. When you ignore a subpoena, three things happen:
* The investigators will assume there’s a reasons you’ve chosen not to comply. While this not have any bearing on your guilt or your likelihood of being convicted, it does make investigators wonder what you’re trying to hide. This may lead to more in-depth investigations or reduce your ability to negotiate.
* You’ll face a motion to compel. If you don’t comply, investigators can ask the court to issue a motion to comply, basically an order insisting that you comply with the subpoena.
* You’ll face contempt of court charges. If you still don’t comply, the court can find you in contempt of court. This can lead to fines or imprisonment, even if you’re not prosecuted as a result of the underlying investigation.
While you are required by federal law to respond to the subpoena, there are several different ways that you can respond. Since you’re now know you’re not going to simply ignore the subpoena, you have three main options:
* Fully Comply: Obviously, you can choose to comply with the subpoena. This means preparing to testify and producing all requested records, without withholding anything. If you’re not the target of the investigation and aren’t concerned about protecting confidential or privileged information, this might be a good option. However, you should still obtain advice from counsel before simply complying. An experienced federal defense attorney will help you prepare for compliance and also help advise you of any risks or other options.
* Withhold Privileged Information or Documents: Another response alternative is to withholding information and/or documents if they’re protected by either attorney-client privilege or your right to avoid self-incrimination. Federal investigators cannot require you to waive your protections under the Fifth Amendment, and they can’t force you to disclose documents or information that was shared with you in a confidential attorney-client relationship. If you choose to withhold any information or documents you consider privileged, make sure you have a clear plan and follow the necessary compliance procedures. Experienced defense counsel can help ensure you maintain compliance with the subpoena while withholding privileged information.
* Challenge the Subpoena: You can challenge a federal subpoena, either in whole or in part, on various grounds. The specific procedures and grounds for challenging the subpoena will depend on two factors: the type of subpoena (such as an administrative subpoena or a judicial subpoena) and the federal agency who served the subpoena. Sometimes, it’s necessary to meet with the investigating agency before you can submit a challenge. Other times, you can immediately file a motion in federal district court to quash a subpoena, either in whole or in part. Your attorney will help you navigate the process.
There are also multiple phases you might encounter, such as:
* Reviewing the subpoena
* Completing an internal review to determine what information might be subject to privilege.
* Contacting investigators to discuss the scope and clarify any ambiguities.
* Meeting with investigators to discuss limiting the scope, and/or to discuss privileged information that might be withheld.
* Filing a motion to quash the subpoena
* Preparing a response to the subpoena
Bottom line: If you’ve received a federal subpoena, don’t ignore it but don’t go it alone. Contact an experienced federal defense attorney today to help ensure compliance while protecting your rights.
What Is a Subpoena?
A subpoena is a formal request for documents or testimony. It’s not a court order, but it does have the force of law. A subpoena is issued by an attorney or government official, and it requires you to appear in court or turn over documents. If you don’t comply with a subpoena, you can be held in contempt of court.
If you receive a subpoena, there are three possible courses of action:
Comply with the subpoena. You can comply with the subpoena by turning over the requested documents or appearing in court to testify. If you comply with the subpoena, that generally ends your involvement in the case. However, if you turn over documents that implicate yourself or someone else in criminal activity, you could still be charged with a crime based on those documents. Refuse to comply with the subpoena. You can refuse to comply with the subpoena if it violates your constitutional rights or if it’s not properly served on you. If you refuse to comply with a validly served subpoena, you can be held in contempt of court and fined or jailed until you agree to cooperate. Negotiate with the person who issued the subpoena about what information will be provided and how it will be provided (for example, turning over only certain records). This is called “quashing” a subpoena and is usually done by filing a motion to quash before the date specified on the subpoena for compliance.
Why Would I Be Subpoenaed?
There are two types of subpoenas: civil subpoenas and criminal subpoenas. Civil subpoenas are issued as part of civil lawsuits between private parties; criminal subpoenas are issued as part of criminal investigations conducted by state or federal prosecutors’ offices (or occasionally grand juries). In either case, if someone wants information from you that they think will help them prove their case (or defend against someone else’s case), they may issue a subpoena requiring that information from you. The specific information required will depend on what type of case is involved and what issues need to be proven at trial (or before trial).
What Are the Grounds for Challenging a Federal Subpoena?
The grounds for challenging a federal subpoena will depend on the type of subpoena and the issuing agency. For example, if you receive an administrative subpoena from the Department of Health and Human Services (HHS), you can challenge it on several grounds, including:
The grand jury has no jurisdiction over the case. This may be because the statute of limitations has expired or because there’s no evidence that a crime was committed in that district. In addition, if you’re not a citizen of the United States, you may be able to argue that your rights under international law are being violated by being forced to appear before a grand jury in this country. However, this argument is rarely successful. If your challenge to the grand jury’s jurisdiction is unsuccessful, you may still be able to assert Fifth Amendment privileges against self-incrimination if testifying would expose you to criminal charges in another country.
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