Served With a Grand Jury Subpoena: What Comes Next.

If you have been served a federal grand jury subpoena, this does not necessarily mean that you are a target of the investigation or that criminal charges will be filed against you. At this stage, a federal grand jury subpoena is simply evidence that the government wants to obtain information from you or that you have knowledge relevant to its ongoing investigation.

You should start preserving relevant documents and other evidence as soon as you are served. If you have not yet been served, it is still vital that you preserve all materials that could be relevant to the investigation as well as any materials that can help defend you and prove your innocence.

Generally, if you have been served a federal grand jury subpoena you are not required to answer investigators’ voluntary questions right away. After you retain federal counsel at Spodek Law Group, your attorney can communicate directly with

How do I Read a Federal Grand Jury Subpoena?

When reviewing your subpoena on the first day, pay close attention to the recipient’s legal name. One reason for this is that errors can occur, particularly if it is your first federal experience. However, it is also possible that the government has issued the subpoena to you specifically, perhaps because they think you have particular documents in your possession. If the subpoena is issued to you as a person and you have received a copy of the subpoena’s schedule, your first priority should be to ensure you preserve everything that could be relevant and that you do not destroy or delete any documents or electronic data.

Also, when reviewing your subpoena, check for any information on the method of service. Did you receive the subpoena by mail or did you get it from a U.S. Marshal or a federal agent who delivered it in person? Did you have a person you don’t know deliver it to you, or did you receive it on your computer? Knowing this will help you determine what steps you should take moving forward.

1. The Caption

Federal grand jury subpoenas will have captions at the top that identify which federal district is conducting the investigation. If you have received a subpoena from a district where you do not live or have a business, you may be able to avoid unnecessary travel and expenses.

2. The Return Date

The subpoena will list a return date, which is the date when you are required to comply with the demands of the grand jury. This could be the date of the grand jury meeting or the date when documents must be delivered to the prosecutor.

3. The Place of Compliance

The return date may be located near the place of compliance. The subpoena will specify where you are required to show up, the location of the grand jury, the office of the prosecutor, or the location where you must provide your records.

4. The Document Schedule

If the subpoena includes a document schedule, review it carefully. Document schedules specify the categories of documents or records that the federal government wants to obtain from you. They are often written in broad language.

5. Does the Grand Jury Require Your Presence?

You need to know if the grand jury requires your presence. Are you being subpoenaed for records, testimony, or both? A subpoena that requires your presence is known as a subpoena ad testificandum. If it only requires records, it is known as a subpoena duces tecum.

6. Can I Produce the Documents without Testifying?

In many cases, the answer is yes, but you must speak with a prosecutor first. If the prosecutor agrees, you can provide the records without showing up to testify before the grand jury.

7. Can I Send a Representative to Provide the Records?

Depending on the specific subpoena, this could be an option. If the subpoena requires you personally to deliver the records, you will have to do so unless you get special permission from the government.

How Do I Preserve Evidence Without Giving Federal Agents Access?

If federal agents want to search your device, they will need to obtain a search warrant. Having received a federal grand jury subpoena does not grant agents a right to access your phone, computer, or other devices. However, you may be thinking about how to preserve your evidence without giving the government direct access to it. Federal agents cannot search your devices unless you provide your consent or they obtain a search warrant. If you consent, agents do not need a search warrant at all, and anything they find during the search can be used against you in a criminal prosecution. However, a consent search can quickly expose sensitive information that is irrelevant to the government’s investigation. Instead of voluntarily allowing access, contact federal counsel. Your attorney can talk to the agents and explain that you are keeping the evidence preserved, while you determine how to best provide the evidence in your possession.

2. Implementing a Legal Hold

One way to preserve evidence is by implementing a legal hold. This is a standard procedure for maintaining documents and electronic information. A legal hold suspends automatic deletion and backup-overwrite processes. A federal criminal defense attorney can help you implement this as soon as possible.

3. Where is the Responsive Evidence?

If you need to preserve evidence, you need to determine where that evidence might be. Potentially responsive evidence could be on:

• Your personal devices (iPhone, Android, tablet, laptop, desktop, external hard drives)
• Your cloud storage accounts (Google Drive, iCloud, Dropbox)
• Your email accounts (Gmail, Outlook, Yahoo Mail, etc.)
• Your business, financial, or professional accounts

The subpoena may demand evidence that can be found in your personal accounts and devices. Even if the subpoena relates to your business or a commercial transaction, the government will want to see documents and communications relating to your actions and intentions. So, make sure that you are preserving responsive communications on your devices as well.

4. Do Not Overlook Cloud Storage and Messaging Apps

Evidence of a crime can also be stored in messaging apps like iMessage, WhatsApp, Signal, Facebook Messenger, Telegram, Instagram DMs, and others. These apps are frequently reviewed in criminal investigations. In addition to these, any documents or information held in cloud storage must be preserved.

5. Should I Hand My Device Over to the Federal Agents?

Regardless of the type of evidence you may be preserving, you should not hand over your device to federal agents unless they have a search warrant. Even then, you should still speak with a federal lawyer. The government does not have a right to your device unless they have a search warrant. If you volunteer your device to the federal government, you lose the protection of the Fourth Amendment.

6. What About My Passwords?

Depending on the facts at hand, agents could demand that you provide the password to your phone, computer, or cloud storage account. This is a sensitive legal issue. Providing access to a device or app by means of your password could be considered testifying against yourself and could fall under the protection of the Fifth Amendment. You should not provide your passwords to federal agents. Your password can also unlock the entire device, exposing unrelated but sensitive information that is not responsive to the subpoena.

7. Should I Leave Auto-Delete Active?

If you have been subpoenaed to produce responsive communications from a messaging app such as WhatsApp, Signal, and other apps, you should immediately disable any auto-delete settings. If you allow the auto-delete function to destroy evidence that is responsive to the subpoena, you can face the risk of being accused of spoliation of evidence or obstruction of justice.

Can I Challenge or Narrow a Federal Grand Jury Subpoena?

If you received a federal grand jury subpoena, a federal district judge may have the authority to quash or modify the subpoena. Under Rule 17(c)(2), a motion to quash or modify should be granted “if compliance would be unreasonable or oppressive.” In United States v. R. Enterprises, the court explained that the burden falls on the party challenging the subpoena. If you think your subpoena is unreasonable or oppressive, speak with federal counsel. Your federal attorney can pursue all legal options to protect your rights while talking to the federal agent as well.

2. Will the Court Allow a Modification?

The standard for modifying or quashing a federal grand jury subpoena is based on the reasonableness and burdens involved in the requests. With respect to criminal investigations, the grand jury’s need for evidence should outweigh the burdens associated with compliance.

United States v. R. Enterprises established a broad standard of relevance for grand jury subpoenas. In this case, the court held that a motion to quash must be denied unless the district court determines that there is no reasonable possibility that the category of materials the government seeks will produce information relevant to the general subject of the grand jury’s investigation. Again, if you are the recipient of a federal grand jury subpoena, speak with federal counsel. Your federal criminal defense attorney will be able to determine if you should try to seek relief from the court or if you should provide the requested records and/or testimony.

3. Can I Change the Deadline of a Federal Grand Jury Subpoena?

Generally, you cannot change the deadline of a federal grand jury subpoena unless the prosecutor agrees to a change or if you get judicial relief. In many cases, it will take a significant amount of time to gather documents, records, and electronic information. Even when this presents issues with compliance, it is never better to provide inaccurate or incomplete information to the federal government. If you cannot comply by the deadline, contact federal counsel promptly. Your lawyer will be able to contact the prosecutors to discuss the return date, and your lawyer will be able to explain to them your good-faith effort to comply with the demands of the subpoena.

4. What Happens If I Do Not Comply with a Federal Grand Jury Subpoena?

If you have received a federal grand jury subpoena, then compliance is not voluntary. This is another reason why it is important to talk to your federal criminal defense lawyer promptly. Unjustified noncompliance can lead to civil or criminal contempt proceedings. Your attorney will help you ensure that you comply with your legal obligations.

5. When Should I File a Rule 17(c)(2) Motion to Quash or Modify?

If you have an attorney, your attorney will file the Rule 17(c)(2) motion to quash or modify before the return date. It is important to note that negotiating with prosecutors does not stop the return date. If negotiations do not lead to a favorable result and you need to take your subpoena to court, your lawyer will need to file the Rule 17(c)(2) motion prior to the return date. If your subpoena specifies a date for your production or testimony, then you must make sure that you have sought a deadline extension or have filed your motion in a timely fashion.

If you are facing this situation, Spodek Law Group handles federal criminal defense matters nationwide, from offices in New York and Los Angeles.

What If Collecting the Requested Records is Unclear or Burdensome?

If you received a federal grand jury subpoena and are not sure what records are responsive, you should not guess. You should speak with your federal criminal defense attorney, and your lawyer will help you determine your compliance obligations and how to preserve the responsive evidence. In any criminal investigation, you may be at risk of having to produce privileged information to the grand jury. Thus, it will be important that you have a federal lawyer to conduct a privilege review before you produce any responsive records to the federal government.

If you have received a federal grand jury subpoena for documents you do not have in your possession, custody, or control, you cannot produce those records. If you received a federal grand jury subpoena for records with ambiguous date ranges, you should not guess either. You should speak with your attorney, and your attorney will talk to the federal agents to get a clarification on the time frame that the records must cover. If the evidence that you need to collect is so burdensome that you cannot practically collect it, you need to contact a federal lawyer promptly. Your attorney may be able to narrow the subpoena by negotiating with the prosecutors or by filing a Rule 17(c)(2) motion to quash or modify with the federal court. Depending on the specific circumstances, your attorney could be able to narrow the search for the records by limiting:

• Custodians
• Sources
• Search terms
• Date limits

2. What If a Vendor Has the Records?

If a vendor has the records the federal government wants, you will first need to send a preservation request to the vendor so that you can produce records from a backup or a digital copy.

3. What Is a Collection Protocol?

A collection protocol is a document that records:

• The list of custodians
• The list of sources
• The list of search terms
• The date the search was conducted

You can use your attorney’s collection protocol to make sure that you preserved the responsive records and are ready to produce them.

4. Should I Produce Records on a Computer Screen or as Printed Hard Copies?

Unless specified by the federal agents, produce documents on a computer screen. If you produce records on computer screens, the federal agents will be able to view the documents’ metadata, which is information contained in files but not necessarily apparent in a printed copy. If you need to produce your records as printed hard copies, your federal criminal defense lawyer can help you determine how best to provide the records.

Does the Company Lawyer Represent Me or Only the Business?

If your employer has hired a law firm to handle its response to a federal grand jury subpoena, then you should know that the company’s lawyer does not necessarily represent you. The company’s lawyer represents the company and its board of directors. If federal agents have evidence that you committed a crime and you are the focus of a federal investigation, your interests are likely very different from those of your company. You will want to speak with a federal criminal defense attorney promptly to protect your rights, and you will want to make sure that the company’s lawyer is not representing you.

If your lawyer was designated to act as a corporate custodian for the purpose of producing responsive records, then this means you are acting on behalf of the company and not on your own behalf.

It may also be relevant if you are the sole owner or a key shareholder. However, just because you may be the owner or a main shareholder of the company does not mean the corporate records are personal records. If the records are corporate records and they are subject to the company’s subpoena, then the company cannot refuse to produce the records based on your Fifth Amendment privilege.

This is the purpose of what is known as the “Upjohn Warning.” The Upjohn Warning will be given to employees when they interview with the company’s counsel. The Upjohn Warning will explain:

• Your lawyer represents the organization and not you.
• The organization owns the privilege and has the right to waive the attorney-client privilege.

So, when the Upjohn Warning is given, then you must understand that the information you provide to the company’s lawyer may be used against you in the grand jury investigation, and the company can choose to provide your statements to federal agents and prosecutors.

2. What Do I Do Next?

If you have received a federal grand jury subpoena, your priority should be to protect yourself from facing civil or criminal consequences. This can be difficult when you are not clear about your obligations and the legal issues that are involved. Talk to a senior federal criminal defense lawyer at Spodek Law Group to understand the issues at hand. Your lawyer can advise you based on the facts of your case. Your lawyer can help ensure that you are not exposed to liability or prosecuted for a crime.

Our federal criminal defense firm has helped individuals and corporations with a variety of issues including:

• Insider Trading Investigations and Prosecution
• Foreign Corrupt Practices Act Investigations and Prosecution

What Happens If I Must Testify Before the Grand Jury?

1. The Grand Jury Proceeding Is Closed to the Public

Under Federal Rule of Criminal Procedure 6(e), grand jury proceedings are not public and are not available to the media. However, this does not mean that you are free to discuss the proceeding with the media or the general public. As a grand jury witness, you generally are not bound by the nondisclosure rules. But, you must speak with a federal criminal defense attorney to learn more about what you can and cannot say to third parties.

2. My Lawyer Cannot Enter the Grand Jury Room with Me

Just as the judge and prosecutor will not let you take anything into the grand jury room, they will not let you take your lawyer in as well. Your lawyer will be available outside the room. You can ask for a break to speak with your lawyer at any time, and you will be given the opportunity to speak with your lawyer before you provide the answers in the grand jury.

3. Can I Assert the Fifth Amendment Amendment in Grand Jury Testimony?

You can assert your Fifth Amendment privilege against self-incrimination on a question-by-question basis. If you think a question will lead to incriminating statements, then you may refuse to answer that specific question. Again, speak with your federal criminal defense attorney to learn more about what can happen if you refuse to answer. Your lawyer can help you navigate the proceedings while minimizing the potential consequences.

4. What Should I Know About Grand Jury Testimony?

The most important thing to know about grand jury testimony is that a person who makes a knowingly false material statement to a grand jury can face prosecution under 18 U.S.C. Section 1623. While, it is difficult for prosecutors to prove intent behind a statement, it is not impossible. Additionally, grand jury witnesses testify under oath. This means, you can be prosecuted for perjury if you commit the offense of lying to the grand jury. Your lawyer will help you prepare for your testimony, answer questions accurately, and protect your rights in the grand jury proceedings.

5. Will I Get a Transcript of My Grand Jury Testimony?

After providing testimony, you will not automatically receive a transcript of your testimony. However, you can request to review a transcript. You must ask for a transcript through your lawyer. Your attorney can then share the transcript with you for your review.

6. What if I Don’t Know the Answer to a Question?

It is perfectly fine not to know the answer to a question. If you are asked a question to which you do not know the answer, then you should not guess. Instead, simply tell the prosecutor or the agent, “I don’t know the answer to this question.” Again, this may lead to further questioning from the prosecutor or the agent, and you should talk to your lawyer about the consequences of this in the proceedings.

Talk to Spodek Law Group

Every case turns on its own facts, and general information is no substitute for advice about yours. Todd Spodek, managing partner of Spodek Law Group, and the firm's attorneys defend federal criminal and white collar matters nationwide. Reach the firm at 212-300-5196.