Attorney Strategies for Negotiating Federal Subpoena Terms

Getting hit with a federal subpoena can be intimidating. The scope often seems endless, the deadlines unreasonable, and the consequences dire if you fail to comply. But experienced attorneys know that federal subpoenas are negotiable, and the right strategy can lead to a much more manageable outcome.

In this article, we’ll walk through some key strategies attorneys use to negotiate federal subpoena terms on behalf of their clients. We’ll look at when and how to challenge a subpoena, tips for narrowing an overbroad subpoena scope, negotiating for more time, asserting privileges, and more. We’ll also discuss the rules governing federal subpoenas and how they provide leverage in negotiations.

Carefully Review What They’re Asking For

The first step is to carefully review exactly what the subpoena is demanding. Make sure you understand the scope of documents, data, or testimony required. Federal subpoenas are often extraordinarily broad[4], so don’t assume the scope is reasonable just because it comes from the federal government.

Look for requests that seem irrelevant, unlikely to lead to admissible evidence, outside a reasonable time period, or otherwise improper. Document these issues, as you may be able to challenge or narrow the subpoena on these grounds.

Get Legal Help Right Away

Don’t try to handle negotiations yourself, especially if you lack experience dealing with federal investigators. Loop in experienced federal defense counsel right away to assist with the response[2]. An attorney familiar with federal subpoena laws can advise you on the best response strategy.

Involving counsel quickly is key, as early negotiations often lead to the best outcomes. Don’t wait until you’ve missed deadlines or otherwise made missteps that weaken your position. Engage counsel at the outset for the strongest negotiating stance[5].

Negotiate the Scope

One of the most effective strategies is to negotiate the scope of the subpoena. Even if you can’t quash it altogether, you may be able to narrow it significantly to reduce the burden of compliance[4].

Point out to the prosecutor or investigator which requests seem irrelevant or unlikely to produce useful evidence. Suggest reasonable limitations, like date ranges, custodians, or search terms. Be prepared to explain why your proposed limitations make sense.

Keep negotiating professionally and persistently until you reach reasonable terms. Don’t let an initial “no” deter you. With patience and savvy negotiating, you can often substantially narrow an overbroad subpoena.

Assert Relevance and Burden Objections

If negotiations fail to reach agreeable terms, your attorney can file a motion to quash or modify the subpoena in court. Grounds for doing so include lack of relevance, undue burden, and privilege[6].

To assert relevance, explain why complying with certain requests is unlikely to produce information relevant to the investigation. For undue burden, demonstrate the difficulty and expense of complying. Estimates from vendors can help substantiate your burden claim.

Note that the court will still require you to comply with relevant requests not covered by privilege, even if other aspects are quashed. But you can often substantially narrow the required production through savvy objections.

Claim Privilege Where Appropriate

If any requested materials are protected by attorney-client privilege, work product doctrine, or other privileges, be sure to formally assert and document those objections.

Supply the prosecutor with a privilege log describing withheld documents and the specific privilege claimed. Follow best practices for properly asserting and preserving privileges to avoid waiver.

Keep in mind that privileges are narrowly construed in federal law. Nonetheless, valid privileges provide an important exemption that your attorney can leverage to limit compliance.

Negotiate for More Time

Federal subpoenas often impose short deadlines that can be unrealistic for compiling extensive records. Don’t assume you’re stuck with the initial deadline.

Explain to the prosecutor why you need more time and propose a reasonable extended deadline. With detailed support for your request, investigators will frequently agree to give you more time to respond.

If negotiations break down, your attorney can file a motion with the court. The court may grant an extension if you demonstrate good cause and negotiate in good faith.

Limit Testimony Topics

If you’re subpoenaed to testify before a grand jury or other proceeding, you can try to limit questioning to relevant topics. File a motion to clarify or limit the scope of the testimony in advance.

During testimony, if questions stray outside the negotiated scope, politely decline to answer irrelevant questions. Let your attorney re-assert proper boundaries on your behalf.

Think Strategically

Approach negotiations strategically, not reactively. Consider the pros and cons of taking different positions. Weigh the risks of litigation versus compromise.

Sometimes the best approach is to vigorously fight the subpoena through motions and court hearings. Other times, acceding to some burdensome requests avoids worse outcomes.

An experienced attorney can advise you on the smartest path forward based on the specifics of your situation.

Stay Calm but Firm

Through the process, stay professional, calm and firm. Avoid emotional outbursts or defiant attitudes, as federal agents respond better to cool-headed reason.

Politely stand your ground when your positions are fair and legally supported. With patience and savvy negotiation, you can often achieve a satisfactory outcome.

Conduct Thorough Searches

For any requests you must comply with, conduct thorough and defensible searches. Document your efforts in case your production is later challenged as inadequate.

Work closely with an eDiscovery provider to demonstrate comprehensive collection from agreed custodians and sources. Follow best practices to show good faith.

Don’t Go It Alone

Resist any temptation to handle negotiations yourself without an attorney. Federal agents are skilled negotiators. You need experienced counsel to advocate effectively on your behalf.

Choose a firm with specific expertise negotiating federal subpoenas. Their familiarity with the rules and strategies will prove invaluable.

The Rules Governing Federal Subpoenas

Familiarity with the applicable rules is crucial for subpoena negotiations. Let’s look at some key provisions of the Federal Rules of Civil Procedure (FRCP) that provide leverage:

FRCP 45 – Requirements for Issuing Subpoenas

This establishes requirements for the subpoena’s form and contents, service, and place of compliance[6]. Violations provide grounds for objections.

FRCP 45(d)(1) – Protects Against Undue Burden

The court must protect recipients from undue burden and expense. This supports narrowing requests or extending deadlines.

FRCP 45(d)(2)(B) – Objections to Subpoenas

The recipient can object to a subpoena by serving written objections on the party issuing it. This initiates negotiations.

FRCP 45(d)(3) – Motion to Quash or Modify

The court can quash or modify overbroad or inappropriate subpoenas. This provides leverage in negotiations.

Familiarize yourself with these and other FRCP provisions governing subpoenas. They provide a framework your attorney can use to challenge overreach.

Conclusion

Receiving a federal subpoena can be daunting, but experienced counsel can help negotiate much more favorable and manageable terms. Strategies like narrowing the scope, asserting objections and privileges, extending deadlines, and limiting testimony provide leverage.

Respond promptly, involve skilled legal counsel, stay calm but firm, and keep pushing back against unreasonable demands. With savvy negotiation guided by federal subpoena rules, you can often reach a satisfactory compromise.