Your Company Received a Subpoena – Now What?

By Grant Willis and Morgan Johnson

In the ordinary course of business, companies are likely to receive a subpoena tied to a criminal proceeding or government investigation, irrespective of any legal wrongdoing on the part of the company. The subpoena may relate to a client, business partner, employee, former employee, vendor, or contractor.

When a company receives a criminal subpoena, whether from a government agency or grand jury, it should act quickly and carefully to avoid adverse legal consequences and protect its rights.

These subpoenas are often broad in scope and may require production of documents, data, records, emails, or other materials in a specific format. They may also require a company representative to appear in court with the subpoenaed materials. Responding can be complex and burdensome, and mistakes can lead to waived rights or criminal penalties. While there are several types of subpoenas, this article focuses on subpoenas requiring production of documents, data, correspondence, records or tangible items.

Time is critical when a company receives a subpoena. Some deadlines are weeks away, but others may be only days after service. A company should notify or retain counsel promptly. Counsel may be able to extend the deadline, narrow the subpoena, or avoid an unnecessary court appearance.

The company should give counsel a full and candid account of the facts related to the subpoena. Counsel can help determine whether the company or its employees are targets, subjects, or witnesses and should communicate with investigators or prosecutors to develop an understanding of the matter and open the lines of communication.

Companies and counsel should generally take the following steps upon receipt of a subpoena:

1. Consult counsel immediately. Subpoenas often require a quick response, and failing to respond timely can result in waived rights or criminal penalties.
2. Issue a litigation hold. The company must preserve potentially relevant documents, data, emails, texts, invoices, records, and other materials. Routine destruction policies should be suspended. Failure to implement a litigation hold can result in the issuance of sanctions or other adverse actions by a court.
3. Counsel should carefully review the subpoena, including the issuing court, case name, deadline, and requested materials, and identify any procedural defects or substantive issues affecting the obligation to respond. This may involve producing the requested materials or seeking more time, serving written objections, or, if the subpoena is defective, moving to quash it.
4.  If complying, manage production carefully. This may require collecting, labeling, reviewing, and producing large volumes of materials in a specifically required format.
5. Review all materials for privilege and confidentiality before production. Privileged or confidential information must be protected to avoid waiver or other harm to the company.

In short, preserve first, object later, and work with counsel quickly to ensure compliance with relevant law, protection of rights and privileges and to avoid criminal or other penalties. Ignoring a subpoena, delaying, or responding improperly can lead to sanctions, contempt, penalties, or waiver of important rights.

Taylor Porter’s Investigations & White Collar Defense Team includes former prosecutors who have extensive experience in issuing corporate subpoenas and the team regularly advises clients regarding responding to subpoenas and related matters. For more information, contact:  Grant Willis at grant.willis@taylorporter.com and Morgan Johnson at morgan.johnson@taylorporter.com.