It may be a Monday morning, or perhaps even more likely a Friday afternoon. It may be in your regular mail, or it may be sent certified, or a sheriff may pay you a visit or a process server or really anyone over 18.
What is this? Depending on whether or not you’ve received one before, you may be confused at first. It’s a subpoena. What is a subpoena? Loosely, it’s a court-ordered document compelling a person or organization to provide evidence, in the form of documentation or testimony. Failure to comply with the terms of a subpoena may result in civil or criminal penalties, including fines or jail time.
Who sent this to me? This is more complicated than you might anticipate. Generally speaking, with some additions, subpoenas may be issued under state and federal laws by attorneys representing clients in both civil and criminal litigation and by judges on behalf of government officials (including Congress, agency heads, etc.). The most common example of when you might receive a subpoena is if you are a witness in a court case.
What do I do now? This is highly dependent on the answers to the questions you asked above, including who the subpoena is from (private party or government), what it relates to (civil or criminal matter), and what it’s requesting (documents or testimony). First and foremost, if you have an attorney and/or the funds necessary to engage one, this is likely a time to reach out. He/she will be better equipped to evaluate the subpoena and determine next steps.
Example #1: A lawyer in a civil case has issued you a subpoena requesting receipts for purchases made by Ronald McDonald between August 1 – 31, 2022.
- Let’s assume you can access/produce those receipts fairly easily. In that case, the path of least resistance may simply be to produce what they’ve requested. Before doing any collection or production, though, it is always advisable to reach out to the attorney who issued the subpoena to get a better understanding of what he/she is looking for and to avoid wasting time or efforts. If the terms of the subpoena are unduly burdensome or broad (for example requesting all receipts for purchases made by 100 different people over the span of five years and you don’t have an automated system for collection), this is an opportunity to discuss those challenges with the attorney and potentially narrow the scope of the subpoena. These discussions are sometimes called “meet and confers” and are something an attorney, if engaged, can and will handle.
- Once the scope of the subpoena is finalized, in this example, the next step is to collect the documents requested. Review the documents to ensure they are what you intend to produce and to remove any potentially privileged materials (loosely meaning communications with an attorney or about potential or pending litigation). Then produce the documents. Once that is done, it is possible the issuing attorney may have follow up questions and/or requests. In a perfect world, however, upon production of the documents, the matter will be resolved and you can breathe easy.
- Let’s add one final twist. You receive the subpoena, but it’s asking for the recipe to your secret sauce. Producing that will ruin you; and, in any event, you think it’s irrelevant to the case. Generally speaking, this is something to raise at the meet and confer. It may be possible to enter into a confidentiality agreement limiting the dissemination of the recipe or to convince the issuing attorney of the recipe’s lack of relevance. However, if the issuing entity disagrees and insists on compliance, you may need to file a motion to quash. This generally means that you can refuse to comply with the subpoena until the court has ruled on the motion. Even if you had been handling the meet and confers without counsel to this point, this is likely a time to bring one in.
Example #2: You receive a grand jury subpoena requesting any and all evidence you possess about an alleged money laundering scheme.
- Whether or not you have an attorney, this is the time to call one. Receiving a federal grand jury subpoena means that you or someone you know is the target of a federal criminal investigation by the Department of Justice.* You may receive a grand jury subpoena if you’re a “target” – or a suspect or putative defendant, a “subject” – someone whose conduct is within the scope of the grand jury’s investigation, or a “witness” – an individual who may have information that law enforcement believes might be relevant. The subpoena will not specify which you are (and the government does not have to tell you); and it is possible to move between the categories.
- As with all subpoenas, a federal grand jury subpoena can request the production of documents or testimony. Upon being served, the first step is to review the subpoena in detail and assess the burden that it imposes. While this may be a good time to reach out to the issuing attorney to get more information or identify what they’re seeking, there may be reasons why it’s better not to do so. Your attorney will discuss the pros and cons of reaching out to the government with you.
- While it is possible to challenge a federal grand jury subpoena, the grounds for doing so are limited. Should your attorney elect to reach out to the government, it may be an opportunity to discuss ways to reduce the scope of the subpoena. If they refuse, as above, your attorney may elect to file a motion to quash. However, it is highly unlikely for a subpoena to be withdrawn or quashed in its entirety.
- Your attorney will work with you to identify, locate, and properly produce the materials sought by the government. Full compliance may require numerous productions. As above, the government may have questions or request additional materials or even testimony.
No matter whether you engage counsel or elect to proceed on your own, what you absolutely do not want to do is ignore a subpoena. If you fail to comply with a subpoena without a legitimate lawful excuse, a court could deem you in contempt of court with consequences potentially including arrest and/or an order to pay any costs caused by your failure to comply with the subpoena.
*In practice, all federal felonies must be indicted by a grand jury unless a defendant waives the right and instead pleads to a so-called “Information.” A grand jury subpoena is a tool at the disposal of the U.S. Attorney’s Office to secure evidence related to their investigation.
This article should not be construed as legal advice or a legal opinion on any specific facts or circumstances. The contents are intended for general informational purposes only, and you are urged to consult your own lawyer on any specific legal questions you may have concerning your situation.
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