What Happens if You Ignore a Subpoena?
Receiving a federal subpoena can raise lots of questions: Why have you been subpoenaed? What information or records do you need to provide? Are you entitled to withhold privileged information or records? What happens if you simply ignore it?
With regard to this last question, ignoring a federal subpoena is not a good idea. This is true regardless of the type of subpoena you have received. If you ignore the subpoena, not only is this likely to raise questions as to why you have chosen not to respond as required, but it could also lead to being held in contempt of court.
I Received a Federal Subpoena. Do I Have an Obligation to Respond?
You have been served with a federal subpoena—do you have an obligation to respond? The answer to this question is a clear, “Yes.” No matter how disinterested you may be in assisting the government’s investigation, and no matter how concerned you may be that responding to the subpoena could lead to problems, you are required to respond under federal law.
However, what your response must entail is not nearly as straightforward. Setting aside the option of simply ignoring the subpoena (which would be strongly ill-advised), your three primary options are:
- Fully Comply with the Subpoena – One option is to prepare to testify or produce all of the requested records, and not to hold anything back. If you are not the target of the government’s investigation and you do not have any concerns about protecting privileged or confidential information, this may be a viable option. However, before you simply give the investigators what they want, you still need to seek advice from federal defense counsel.
- Withhold Privileged Information and/or Documents – When responding to a federal subpoena, you are entitled to withhold any information or documents that are protected under either (i) the privilege against self-incrimination, or (ii) the attorney-client privilege. Federal investigators cannot force you to give up your Fifth Amendment protections, and they cannot compel you to disclose information that has been shared in confidence between you and your legal counsel. When choosing to withhold privileged information or documents that are responsive to a federal subpoena, it is important to have clear plan in place and to follow documented procedures that ensure compliance.
- Challenge the Subpoena (in Whole or in Part) – Federal subpoenas can be challenged on various grounds, although the specific grounds and procedures for challenging a subpoena depend upon both (i) the type of subpoena with which you have been served (i.e. a judicial subpoena or an administrative subpoena), and (ii) the federal agency through which the subpoena was issued. In some cases, it will be necessary to “meet and confer” with the investigating agents before submitting a formal challenge. In others, you can proceed directly with filing a motion to quash the subpoena (in whole or in part) in federal district court.
Within each of these three broad alternatives, there are several nuances, and responding to a federal subpoena is a matter that requires a strategic and well-planned approach. A multi-faceted approach will often be necessary as well. For example, in a typical scenario, responding to a federal subpoena will involve:
- Reviewing the subpoena and conducting an internal assessment to determine what responsive information and/or records are subject to the privilege against self-incrimination or the attorney-client privilege;
- Making contact with the investigating agents to discuss the scope of the subpoena and obtain clarification regarding any ambiguities;
- Meeting and conferring with the investigating agents to discuss reducing the scope of the subpoena and to provide advance notice that certain privileged information and/or records will be withheld;
- Filing a formal motion to quash the subpoena if efforts to negotiate its scope do not produce a desirable outcome, and potentially continuing to negotiate the scope of the subpoena while the motion to quash is pending; and,
- Preparing to provide a substantive response to the subpoena pending the outcome of any ongoing negotiations and the motion to quash (if you are not completely absolved of your obligation to respond, you will still need to meet the stipulated deadline unless otherwise ordered or agreed).
What are the Risks of Ignoring a Federal Subpoena?
Ignoring a federal subpoena entails significant risks, and ultimately is likely to offer very little (if anything) in terms of a reward. This is because, when you ignore a federal subpoena: (i) the federal agents handling the investigation are going to assume that there is a reason why; and, (ii) if you refuse to respond, you can face a motion to compel and, subsequently, a motion for contempt of court.
1. The Investigating Agents Will Assume There is a Reason You Have Refused to Respond
From a purely legal perspective, ignoring a subpoena will not have a direct impact on your risk of being convicted of the substantive offense(s) underlying the federal government’s investigation. Ignoring a federal subpoena does not create a presumption of guilt—in large part because there are simply too many factors at play.
However, if you ignore your subpoena, this is likely going to raise questions in the minds of the agents who are handling the investigation. Since you are refusing to respond, what are you trying to hide? Whereas submitting a compliant response (while fully protecting your legal rights and privileges) can be part of a broader defense strategy, ignoring a federal subpoena is more likely to raise additional questions and limit your chances of achieving a favorable pre-charge result.
With that said, when responding to a federal subpoena, you can – and should – assert the privileges we discussed above. You should also seek to challenge the subpoena to the full extent permitted by federal law (or applicable agency rule, in the case of an administrative subpoena). Federal agents understand the rights you are afforded, and they have enough experience to know that subpoena recipients who are represented by counsel will not simply produce everything that has been requested without question.
2. You Can Face a Motion to Compel and, Subsequently, a Motion for Contempt of Court
Administrative and judicial subpoenas can both be enforced by a motion to compel at the federal level. As a result, if you ignore your subpoena, you can expect the agency that is handling the investigation to promptly file a motion in an effort to force you to respond. If the court grants the agency’s motion to compel and you still refuse to comply, then the agency can go back to court and file a motion for contempt of court.
Under 18 U.S.C. Sections 401 and 402, contempt of court is a federal crime. Once a federal judge has issued an order compelling a response to a subpoena, failing to respond to the subpoena also amounts to a failure to comply with the court’s order. This constitutes contempt of court. Under Section 401:
Similarly, as outlined in Section 402:
In order to be prosecuted for contempt, you do not have to also be prosecuted for the alleged offense(s) underlying the federal government’s investigation. In fact, you do not even need to be the target of the government’s inquiry. A criminal contempt proceeding is a separate matter entirely, and facing a contempt prosecution for refusing to comply with a subpoena (and subsequent motion to compel) is a risk regardless of whether you are a witness, suspect, or target in the government’s investigation.
While neither Section 401 nor Section 402 specifies the penalties for contempt of court, in criminal contempt cases, defendants can face substantial fines and years-long terms of incarceration. The specific penalties at issue will depend on the specific circumstances involved. Additionally, the obligation to respond to the subpoena does not simply go away, and you could face other enforcement measures as well. It is also important to keep in mind that the investigating agents may be able to gather sufficient evidence to pursue charges through other means; and, thus, even if you ignore the subpoena and face criminal prosecution for contempt, you could still very much be at risk for facing prosecution based on the substantive issues targeted in the government’s investigation.
Have You Been Served with a Federal Subpoena?
If you have been served with a federal subpoena, we encourage you to speak with one of our senior federal defense attorneys promptly. For a complimentary and confidential case assessment, call 888-680-1745 or tell us how we can reach you online now.
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- 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.