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Failure to comply fully with grand jury subpoenas can result in contempt of court or obstruction of justice. Follow these top 10 tips.
RESPONDING TO A FEDERAL GRAND JURY SUBPOENA (10 TIPS)
INTRODUCTION
Federal grand juries consist of 16-23 individuals who determine if probable cause exists to charge someone with a crime. A federal grand jury does not decide if a person is guilty, and all people indicted by a grand jury are innocent until proven guilty.
A federal grand jury subpoena means that a federal criminal investigation is underway at the Department of Justice (DOJ). The person named in a grand jury subpoena may or may not be a target of such an investigation. Many potential witnesses receive grand jury subpoenas as part of an investigation.
Understandably, no one wants to receive a federal grand jury subpoena. However, whether target or witness, the matter is serious and deserves full attention. At a minimum, the subpoena indicates that the government believes the recipient has information relevant to an ongoing criminal investigation.
Failure to comply fully with a grand jury subpoena can result in contempt of court proceedings and even obstruction of justice allegations.
*Pro-Tip: Remember to consult with experienced criminal counsel before responding to a grand jury subpoena, regardless of whether you are a target or witness in a government investigation.
THE GRAND JURY SUBPOENA
Generally, a federal grand jury subpoena is prepared and approved by an
Assistant United States Attorney (AUSA), working together with the federal agents involved in the investigation. Federal law enforcement agents participate in preparing a list of the items the government seeks.
Federal grand jury subpoenas ask for:
(a) testimony before the grand jury (subpoena ad testificandum);
(b) documents or objects (tangible evidence) (subpoena duces tecum); or
(c) both.
The face of the subpoena indicates if the subpoena seeks testimony, tangible evidence, or both. The name on the subpoena is either a person thought to have relevant information in their individual capacity or the custodian of records for a business entity.
A subpoena for tangible evidence seeks documents, pictures, videos, tape recordings, test results, bank records, corporate documents, accounting statements, etc. As a practical matter, a subpoena for tangible evidence to a custodian of records does not require the custodian of records to appear in person before the grand jury to testify. Often, it will be enough to comply by turning over documents or electronic files (or both) to the AUSA.
A law enforcement agent generally serves a grand jury subpoena on a person or a company’s custodian of records. The subpoena specifies the types of documents and records needed, the relevant time period for such documents and records, and the date for the production.
The business entity’s custodian of records only has to answer a narrow category of questions about how the company’s documents are located and gathered.
THE PROCESS
Every business should have a process for responding to a grand jury subpoena as a matter of good practice. Some companies find it helpful to pre-designate a contact person at the company or an outside lawyer to handle all subpoenas.
A grand jury subpoena will typically require a review of hard and electronically stored documents. Someone who can act as a custodian and testify before the grand jury coordinates the gathering of responsive documents within the company. The custodian also maintains a log describing the location of responsive documents. The documents also should be copied and numbered before production.
The custodian and legal counsel prepare a privilege log for the AUSA. The privilege log contains a list of all documents withheld on the grounds of attorney-client privilege or attorney work-product. Most companies will have legal counsel review the documents for responsiveness and privilege before producing them to the grand jury.
Generally, the AUSA will accept copies as long as there is an agreement that the original documents will be maintained and made available upon request.
If the custodian of records is required to testify before the grand jury, legal counsel assists in preparing the custodian to testify. Counsel is typically available to provide guidance and assist the custodian when they appear before the grand jury. Legal counsel is not permitted to be present in the grand jury room while the custodian testifies. Counsel generally waits near the grand jury room in the event the custodian has questions or needs assistance.
In this era of aggressive federal investigations and prosecutions, a criminal investigation can begin out of a mere failure to comply with government regulations. Therefore, it is more important than ever for any company to have familiarity with this process in advance.
*Pro-Tip: All businesses should implement a process for handling subpoenas, including federal grand jury subpoenas.
Developing a basic protocol for handling grand jury subpoenas can help minimize disruptions to business operations.
10 TIPS TO RESPOND
These are our top 10 tips to remember when responding to a grand jury subpoena:
1-Make a reasonable effort to comply.
2-Do not overproduce.
3-Challenge the scope, if needed.
4-Assess the attorney-client privilege.
5-Assess any 5th Amendment issues.
6-Interviews are not mandatory.
7-Prepare to testify.
8-Subpoenaed information may appear at trial.
9-Preserve all evidence requested.
10-Avoid contempt of court & obstruction of justice.
1-Make A Reasonable Effort
The burden of responding to a federal subpoena for documents can be significant. Businesses may need to devote substantial internal and external resources to comply with a grand jury subpoena, especially if the response time frame is tight. The law requires the recipient to make every reasonable effort to locate all responsive evidence.
For a document subpoena, key considerations include:
- Are responsive documents and files on-site?
- Are responsive files stored in cloud-based storage?
- Are responsive hardcopy records in off-site storage?
- Are responsive documents or files scheduled for destruction?
It is essential to address these types of issues as early as possible after receiving notice of a grand jury subpoena.
2-Do Not Overproduce
It is crucial to comply fully. It is also important not to overproduce.
Conduct a careful file review and isolate the responsive information. Even if there is a substantial cost to review files to find responsive documents, do not skip this step to save time or money.
*Pro-Tip: Avoid producing unresponsive or extraneous material to the government for any reason.
The subpoenaed person bears the burden of reviewing the files and selecting responsive documents. Attempting to shift the burden to the government to locate the relevant information by overproducing will likely not work. The AUSA may take the position that dumping a large volume of documents without a careful review does not comply with the subpoena.
In addition, it is never good practice to provide documents or information beyond a prosecutor’s request.
3-Challenge the Scope, if Needed
A grand jury has expansive investigatory powers, and challenging a grand jury subpoena is not easy. It is highly unlikely that an AUSA will withdraw, or a court will invalidate a grand jury subpoena entirely.
A motion to quash is the formal mechanism to ask a court to invalidate a subpoena or reduce the burden a grand jury subpoena imposes on the recipient. More informally, negotiating the scope of the subpoena can happen in discussions with the AUSA.
A motion to quash a federal grand jury subpoena addresses questions such as:
- Are there procedural issues with the subpoena?
- Are requests irrelevant to the government’s investigation
- Does the subpoena request documents that are not within the recipient’s custody or control?
- Are the requests overly broad and unduly burdensome?
- Are the requests unreasonably intrusive?
- Are the requests too vague?
4-Assess the Attorney-Client Privilege
The response to a grand jury subpoena must exclude documents protected by the attorney-client privilege. Both companies and individuals must take appropriate measures to preserve the attorney-client privilege to the greatest extent possible.
Turning over privileged materials (even accidentally) can result in a potential waiver of the attorney-client privilege altogether. Once assembled, counsel must review the entire production and withdraw privileged documents.
5-Assess Any 5th Amendment Issues
Invoking the Fifth Amendment’s protection is a critical consideration in all cases where federal prosecution is a risk. The fifth Amendment protects individuals against self-incrimination. It does not apply to corporations and other business organizations. Nor does it apply to records custodians.
Whether a person claims a 5th Amendment privilege as to the contents of a document is a critical issue that clients and legal counsel should discuss. Reports indicate that the contents of requested documents are not subject to the 5th Amendment privilege under federal law. But what if the mere act of producing a document could incriminate? Perhaps asserting the 5th Amendment privilege is valid in that scenario, according to some lawyers.
Fifth Amendment issues are of critical importance, and people should discuss them extensively with their legal counsel.
*Pro-Tip: If you or someone you know is looking for legal counsel to assist with a federal grand jury subpoena, the team at Prison Professors, an Earning Freedom company, can help. We regularly help clients locate and vet experienced counsel specializing in white-collar investigations.
6-Interviews Are not Mandatory
A grand jury subpoena does not permit law enforcement to interview employees or individuals. Any such interviews are voluntary. Employees have the right to refuse an interview and can request that an attorney be present if they decide to participate in an interview.
*Pro-Tip: Having legal counsel present during an interview with law enforcement agents is vital to ensure an accurate record of the scope and content of the discussions.
7-Prepare to Testify Before the Grand Jury
Most grand jury witnesses testify in response to a grand jury subpoena, not voluntarily. Suspects or targets do not usually testify, especially given the 5th Amendment. (Click here for our blog post on what it means to be a Witness, Subject or Target in a Federal Investigation.
Based on consultation with legal counsel, investigation suspects and targets sometimes request to testify at grand jury proceedings. This is a critical decision made after assessing risks and benefits with counsel. Prosecutors can allow them to testify, and often do, although they do not have to. To do so, however, they waive their 5th Amendment right against self-incrimination and consent to a full examination under oath. Prosecutors can subsequently use all statements from a person’s sworn testimony against them.
Attorneys for witnesses testifying to the grand jury may not attend the proceeding itself. Usually, attorneys wait outside the grand jury room and are allowed to speak with clients when the client so requests.
8-Grand Jury Information May Appear at Trial.
At trial, prosecutors often use grand jury materials obtained through subpoenas and sworn testimony. The evidence from the grand jury investigation is often valuable after the grand jury process is over, including when a defendant takes a case to trial.
9-Preserve All Relevant Evidence.
As soon as an individual or company has notice of a grand jury subpoena, the government expects people to make every effort to preserve relevant evidence. No one associated with the business receiving the subpoena should attempt to destroy any documents once the subpoena is on hand. In addition, it is essential to suspend standard document retention and document destruction policies to prevent the accidental destruction of any documents requested in the subpoena.
Destruction of documents called for in a subpoena can cause unnecessary accusations of obstruction of justice.
10-Avoid Contempt of Court & Obstruction of Justice
Federal law is clear that the lack of cooperation with a grand jury subpoena or a lack of document preservation can result in contempt of court or obstruction of justice allegations. The federal government has no tolerance for tampering with evidence.
Business owners and executives should make sure to inform all employees who need to know about the evidence that is under subpoena. Also, be sure everyone understands the company’s policy to cooperate with government investigations. These steps go a long way to avoid additional accusations against an individual or company under subpoena.
CONCLUSION
Understandably, no one wants to receive a federal grand jury subpoena. However, whether target or witness, the matter is serious and deserves full attention. At a minimum, the subpoena indicates that the government believes the recipient has information relevant to an ongoing criminal investigation.
Failure to comply fully with grand jury subpoenas can result in contempt of court or obstruction of justice allegations that can only make matters more difficult. Follow these tips in response to a grand jury subpoena, and talk with legal counsel about the law and the process.
