I Was Served with a Subpoena. Now What?
If you have been served with a subpoena, you need to respond, and at this point crafting your response should be among your top priorities. But, how should you respond, exactly? What information do you need to be prepared to provide? What information are you entitled to withhold? Do you have grounds to challenge the subpoena in its entirety?
When faced with a subpoena, these are all critical questions that you need to answer—and you need to answer them quickly. At the same time, you must avoid rushing to judgment in any respect, and you must avoid overlooking issues that could impact your response. In order to protect yourself, you need to make informed decisions, and you need to do so based on the advice of experienced defense counsel.
10 Tips for Responding to a Federal Subpoena
What do you need to do if you have been served with a federal subpoena (either a subpoena ad testificandum or a subpoena duces tecum)? Here are 10 tips from the federal defense lawyers at Oberheiden P.C.:
1. Review Your Subpoena Carefully
First, you need to review your subpoena carefully. When doing so, there are a few aspects that you will want to examine in particular. These are:
- What court or agency issued the subpoena? Have you been served with a judicial subpoena? Or, was the subpoena issued by the U.S. Department of Justice (DOJ) or another federal agency under its administrative subpoena power. Understanding the nature of your subpoena is important to understanding your obligations and what options you might have available.
- What type of subpoena is it? There are two types of federal subpoenas: (i) subpoenas ad testificandum (which require testimony), and (ii) subpoenas duces tecum (which require the production of documents). You need to know what type of subpoena you have received in order to know what you need to do in response.
- When are you required to testify or produce responsive documents? If you have been served with a subpoena ad testificandum, when are you expected to show up and testify? If you have been served with a subpoena duces tecum, what is the deadline for producing responsive documents? You need to know this date so that you can meet it and avoid facing a motion to compel and potentially being held in contempt of court.
2. Do Not Panic
For many people, once they understand what responding to a federal subpoena entails, their natural response is to panic. But, even if you feel inclined to panic, you need to avoid doing so. While responding to a federal subpoena can be risky and may present a substantial burden, your situation is not insurmountable. You have options and there are resources available, and your defense counsel will help ensure that you do what is required while also effectively asserting your legal rights.
3. Engage Federal Defense Counsel
Speaking of defense counsel, if you have been served with a federal subpoena, you need to speak with a defense attorney right away. Your response burden could be significant, and you must quickly assess whether you have grounds to challenge your subpoena in whole or in part (more on this below). A federal defense lawyer who has represented numerous clients in responding to federal subpoenas will be able to get to work assisting you immediately, and will be able to help you avoid mistakes that could increase your risk of facing civil or criminal charges.
4. Assess the Scope of Your Response Obligation
Working with your federal defense counsel, you will need to promptly assess the scope of your response obligation. Not only will this allow you to formulate a response strategy, but it will also allow you to determine if you have grounds to challenge your subpoena on the basis of overbreadth, insufficient specificity, or the imposition of an undue burden. Once you have a clear understanding of all that your response entails, then you can begin the process of preparing your response on a schedule that is structured to ensure that you can comply with your subpoena without scrambling at the eleventh hour.
5. Determine Whether (and to What Extent) Any Privileges Apply
When responding to a federal subpoena, the general rule is that you are required to provide all information and records that are responsive to the government’s request—but there are a handful of notable exceptions. For example, you are not required to provide records or testimony that are subject to either (i) the privilege against self-incrimination, or (ii) the attorney-client privilege. When preparing your response, it is essential to make sure that you take adequate precautions to protect these privileges. If you do not, you could lose them, and you could find yourself in a far more precarious position than necessary.
6. Determine Whether (and to What Extent) You Have Grounds to File a Motion to Quash
In addition to assessing whether you have grounds to withhold privileged records or information, you will also want to assess whether you have grounds to file a motion to quash. This is the formal means of challenging a subpoena in federal district court. The primary grounds for challenging a federal subpoena are:
- Invalid service
- Lack of jurisdiction
- Insufficient specificity
- Undue burden
Depending on the issue(s) at hand, you may have grounds to challenge your subpoena in its entirety, or you may be limited to attempting to reduce its scope. In either case, prior to filing a motion to quash, your defense attorney may seek to negotiate with the investigating agency. Depending on the circumstances, this may be required, or it may simply be a prudent way of seeking to mitigate (or eliminate) your response burden prior to formally seeking relief in court.
7. Begin Preparing Your Response
Concurrently with assessing any potential grounds to challenge your subpoena, you will also want to begin working with your defense counsel to prepare your response. You can always abandon your efforts if they prove not to be necessary, but you do not want to put yourself in a position where you have waited too long and are unable to prepare a compliant response (while also preserving your legal privileges). Your defense counsel can advise you regarding what is necessary; and, if you need to collect voluminous records in response to a subpoena duces tecum, your defense counsel can utilize e-discovery software to manage and document your collection efforts.
8. Have Your Legal Counsel Review Your Response (if Producing Documents)
If you have an obligation to testify in response to a subpoena, you will work closely with your defense counsel to anticipate questions and carefully craft your responses. If you have an obligation to produce documents, your defense counsel will assist with your collection efforts as discussed above, and it will be important for your defense counsel to review your response as well. This review serves a couple of critical purposes: (i) it ensures that you can stand behind your response as a good-faith effort to comply with your subpoena; and, (ii) it ensures that all privileged documents have been appropriately redacted, withheld, or otherwise protected.
9. Make Sure You Know Exactly What to Expect When You Testify (if Applicable)
If you will be testifying in response to a federal subpoena, you need to know exactly what you can expect when you show up at the scheduled time. Procedures vary greatly between administrative subpoenas, grand jury subpoenas, and judicial subpoenas to testify in federal district court. Having experienced federal defense counsel is imperative, as you will need your attorney to be able to walk you through what you will experience step-by-step so that you can feel as prepared, comfortable, and confident as possible.
10. Avoid Making Any Assumptions or Other Potentially-Costly Mistakes
Perhaps most importantly, when responding to a federal subpoena, you need to avoid making assumptions. You also need to avoid other potentially-costly mistakes that could increase your exposure or your risk of facing civil or criminal charges. As discussed above, the most-effective way to do this is to promptly engage federal defense counsel who can guide you through the process of responding to your subpoena ad testificandum or your subpoena duces tecum.
Regardless of the circumstances at hand, the most important thing to know about responding to a federal subpoena is that you must respond. Ignoring the subpoena will not lead to favorable consequences—even if you were not properly served or the issuing court lacks jurisdiction. Instead, you must take a proactive approach, and you must make sure that your response (i) is sufficiently compliant, and (ii) protects you to the fullest extent possible.
Discuss Your Subpoena with a Federal Defense Lawyer at Oberheiden P.C.
Are you wondering what you need to do in response to a federal subpoena? If so, we strongly encourage you to speak with one of our attorneys. To arrange a confidential initial consultation as soon as possible, call 888-680-1745 or request an appointment online now.
- What Happens if You Ignore a Subpoena?
- Does a Subpoena Have to Be Served in Person?
- How Do I Get Out of a Subpoena to Testify?
- SEC Subpoena
- FDA Subpoena
- 6 Ways to Protect Yourself After Receiving a Federal Grand Jury Subpoena
- 10 Types of Information Sought in Federal Grand Jury Subpoenas
- What Should I Do When I Receive a Grand Jury Subpoena?
- What is a Grand Jury Subpoena Duces Tecum?
- What Can You Expect in a Grand Jury Subpoena?
- 3 Things You Should Do When You Receive a Grand Jury Subpoena or Subpoena Duces Tecum
Dr. Nick Oberheiden, founder of Oberheiden P.C., focuses his litigation practice on white-collar criminal defense, government investigations, SEC & FCPA enforcement, and commercial litigation.