What to Do After a Federal Subpoena

First, identify the type of subpoena

Federal subpoenas generally fall into two categories, and many combine both. The terms come from Latin, but the ideas are straightforward:

• Subpoena ad testificandum - a command to testify, for example before a grand jury or at a hearing.
• Subpoena duces tecum - a command to produce documents, records, or other materials.

Subpoena practice is governed by the Federal Rules of Criminal Procedure (for grand jury and criminal matters) and the Federal Rules of Civil Procedure (for civil matters). Read the document carefully to see who issued it, what it asks for, and when the response is due.

Note the deadline immediately

Subpoenas set a return date - the day you must appear or produce materials. Calendar it right away and share it with your lawyer. If the deadline is unrealistic, counsel can often request an extension or negotiate the scope with the issuing attorney. Do not simply ignore the date.

Preserve everything and issue a litigation hold

As soon as you receive a subpoena, you have a duty to preserve potentially responsive materials. Work with counsel to put a litigation hold in place:

• Suspend any automatic deletion of emails, files, and backups.
• Notify anyone who may hold relevant records to keep them intact.
• Do not edit, delete, or “clean up” documents - altering or destroying materials can lead to obstruction or spoliation consequences.

Conduct a privilege review before producing anything

Not everything a subpoena requests must be turned over. Documents protected by the attorney-client privilege or the work-product doctrine may be withheld, and other protections can apply. A careful review - guided by a lawyer - identifies privileged materials and produces a privilege log where appropriate. Producing privileged documents by mistake can waive important protections.

Fifth Amendment considerations

The Fifth Amendment protects against compelled self-incrimination. For a subpoena to testify, an individual may be able to assert the privilege rather than answer questions that could be incriminating. For a subpoena to produce documents, the analysis is more nuanced - the act of producing records can itself carry Fifth Amendment significance in some circumstances. Whether and how to assert the privilege is a decision to make with counsel, because the protections and exceptions are technical.

Consider a motion to quash or modify

If a subpoena is overbroad, unduly burdensome, seeks privileged material, or is otherwise improper, your lawyer may file a motion to quash (to set it aside) or to modify its scope. Courts weigh the government's need for the information against the burden and any protections that apply. Even when a motion is not filed, counsel can often narrow a request through negotiation.

Work with a lawyer before you respond

Because a subpoena can be a sign that you are a witness, a subject, or a target, the safest course is to talk with a criminal defense lawyer before you produce documents or testify. Counsel can communicate with the issuing attorney, protect privileged materials, advise on the Fifth Amendment, and help ensure your response is complete and timely without giving up more than the law requires.

Quick response checklist

1. Read the subpoena and identify its type and deadline.
2. Do not destroy or alter anything; preserve all records.
3. Put a litigation hold in place.
4. Contact a criminal defense lawyer promptly.
5. Conduct a privilege review before producing documents.
6. Discuss Fifth Amendment options if you are asked to testify.
7. Consider a motion to quash or to negotiate the scope.

Authoritative sources

• Federal Rules of Criminal Procedure (U.S. Courts) (grand jury subpoenas and criminal practice)
• U.S. Department of Justice - Justice Manual (DOJ policy on grand jury subpoenas and witnesses)
• U.S. Courts (uscourts.gov) (overview of the federal court process)