When conducting federal investigations, the U.S. Attorney’s Office has a number of investigative tools at its disposal. One of these tools is the grand jury subpoena. Despite its name, the grand jury subpoena is issued by the U.S. Attorney’s Office – not the grand jury – and the U.S. Attorney’s Office has the power to issue grand jury subpoenas without the need for judicial approval.
The Federal Grand Jury Subpoena Duces Tecum: Explained
Federal grand jury subpoenas can request testimony, documents, or both. A grand jury subpoena that requests documents is known as a grand jury subpoena duces tecum. Duces tecum is a Latin phrase meaning, “you shall bring with you,” and a grand jury subpoena duces tecum literally requires the person subpoenaed to bring documents with them when appearing before the grand jury.
As a practical matter, however, not all individuals who receive a grand jury subpoena duces tecum will actually be required to appear. Oftentimes, it will be possible to satisfy the requirements of a subpoena duces tecum by turning over documents or electronic files (or both) to the U.S. Attorney’s Office. There are grounds available to challenge federal grand jury subpoenas as well; and, in many cases, it will be in a subpoenaed party’s interests to either attempt to negotiate a reduced production obligation with federal prosecutors or file a motion to quash the subpoena in federal district court.
From asserting Constitutional protections (such as the privilege against self-incrimination) to preserving the attorney-client privilege, there are numerous other critical factors to consider when responding to a federal grand jury subpoena duces tecum as well. As a result, upon being served with a subpoena duces tecum, the recipient must begin the process of responding to the subpoena immediately.
Responding to a Grand Jury Subpoena Duces Tecum: Production, Challenges, and Preservation of Rights
1. Identifying, Collecting, and Producing Documents in Response to a Federal Grand Jury Subpoena Duces Tecum
The burdens of responding to a federal grand jury subpoena duces tecum can be significant. It is not uncommon for these subpoenas to be extraordinarily broad, often requesting years’ worth of documents that are described in extremely general terms. For corporations and other business organizations in particular, responding to a grand jury subpoena duces tecum can be a task that requires the devotion of substantial internal and external resources – and even then it may be a struggle to produce all of the subpoenaed records within the prescribed timeframe.
Responding to a federal grand jury subpoena duces tecum involves producing all hardcopy and electronic records that are responsive to the demands of the U.S. Attorney’s Office. This applies to all records within the subpoenaed party’s custody or control. For corporations and other business organizations, the task of responding to the subpoena will be assigned to the organization’s records custodian, who must effectively stand in the organization’s shoes in order to determine what documents and files need to be produced.
It is not unusual for a compliant production to include tens of thousands, hundreds of thousands, or even millions of files. In order to ensure that no responsive files are overlooked (which can potentially lead to federal contempt charges), it is necessary to acquire an understanding of the scope of the universe of responsive documents as quickly as possible. What responsive documents and files are on-site? What responsive files are stored in the cloud? What responsive hardcopy records are in off-site storage? What documents or files are scheduled for destruction? These are all key questions that need to be addressed immediately.
Due to the volume of records at issue, many subpoena recipients will be tempted to hand over their files to the U.S. Attorney’s Office wholesale. This is a mistake. In addition to the protections and privileges discussed below, there are many reasons why subpoenaed individuals and corporate entities must take great pains to ensure that their document production in response to a federal grand jury subpoena duces tecum is no greater than absolutely necessary. Not only is a “file dump” likely to be considered non-compliant; but, once a record has been produced, it is most likely in the government’s hands for good. The U.S. Attorney’s Office can use it to target you, your organization, your employees, or anyone else; and, even if a file is not damaging in the context of the government’s current investigation, it could resurface in a later civil or criminal matter.
2. Challenging a Federal Grand Jury Subpoena Duces Tecum Through Formal or Informal Means
Concurrently with gathering and preparing responsive documents for production, federal grand jury subpoena duces tecum recipients should determine whether – and to what extent – they have grounds to challenge the subpoena through formal or informal means. Formally challenging a federal grand jury subpoena involves filing a motion to quash, and it can seek to quash the subpoena either in whole or in part. An alternative, or potentially a precursor, to filing a motion to quash involves negotiating the scope of the subpoena with the U.S. Attorney’s Office.
Why would the U.S. Attorney’s Office agree to limit the scope of a subpoena that it has just issued? Negotiated reductions in scope are common under a few different scenarios. For example, in some cases federal prosecutors may not have an appreciation for the scope of the burden imposed by a subpoena. This is through no fault of their own – they simply have no way of knowing what is (or isn’t) in the subpoenaed party’s custody and control. If fully complying with a subpoena duces tecum is not feasible, and if the U.S. Attorney’s Office can collect the information it needs without full compliance, then it may be possible to negotiate a more-limited production obligation.
If negotiating a reduced production obligation is not on the table, and if fully complying with a subpoena duces tecum either (i) is not practically feasible, or (ii) would be unduly adverse to you or your organization, then the next option is to file a motion to quash. Potential grounds for filing a motion to quash a federal grand jury subpoena duces tecum include:
- Procedural issues with the subpoena or its issuance
- Requests for documents that are irrelevant to the government’s investigation
- Requests for documents that are not within the recipient’s custody or control
- Overly-broad and unduly-burdensome production obligations
- Unreasonably intrusive and oppressive production demands
- Vague or indefinite production demands
Whether seeking to negotiate with the U.S. Attorney’s Office or pursuing a motion to quash in federal district court, it is highly unlikely for a grand jury subpoena duces tecum to be withdrawn or quashed in its entirety. As a result, subpoena recipients must generally be prepared to produce at least some records (and potentially still a very large volume of records), and this is why any efforts to challenge the subpoena should be undertaken concurrently with efforts to prepare a compliant production.
3. Preserving Constitutional Rights and the Attorney-Client Privilege When Producing Documents in Response to a Federal Grand Jury Subpoena Duces Tecum
In addition to challenging the legality of a subpoena duces tecum, subpoenaed parties can also limit their production obligations by asserting their constitutional rights and the attorney-client privilege in appropriate circumstances. For example, in addition to the constitutional protections that apply throughout the course of a federal investigation, subpoena recipients may also be able to utilize the Fifth Amendment’s protection against self-incrimination to avoid producing responsive documents.
The Fifth Amendment’s protection against self-incrimination does not apply to corporations and other business organizations, and the protection also generally does not apply to the production of documents by an individual in response to a federal grand jury subpoena duces tecum. However, under the “act of production” doctrine, the Fifth Amendment can be used to protect an individual when the act of producing records itself (as opposed to the contents of the records produced) would have a self-incriminating effect. While the “act of production” doctrine is limited in its application, due to the potentially-severe consequences of handing over evidence to the U.S. Attorney’s Office, assertion of the Fifth Amendment’s protections should be explored in all cases where there is a risk of federal prosecution.
In contrast to the “act of production” doctrine, the attorney-client privilege has broad application in the context of a federal grand jury subpoena duces tecum response, and both corporate and individual subpoena recipients must take appropriate measures to preserve the privilege to the greatest extent possible. Documents that are responsive to the subpoena do not need to be produced if they are privileged, and producing privileged documents (even inadvertently) can potentially result in the privilege being deemed waived. In order to avoid inadvertent disclosure of privileged records in response to a federal grand jury subpoena duces tecum, once assembled, the entire production should be reviewed (manually, electronically, or both) so that privileged records can be withdrawn.
Oberheiden, P.C. | Federal Grand Jury Subpoena Duces Tecum Defense Lawyers
Our team of highly-experienced federal defense lawyers routinely represents individuals and businesses that have been served with federal grand jury subpoenas. If you have questions and would like to speak with an attorney, you can call 888-519-4897 or contact us online for a confidential initial consultation.