Responding to a Subpoena in a Criminal Matter
In Law enforcement has asked me for information about my business. What should I do?, Schlam Stone & Dolan partner Michael A. Battle explained the first steps you should take when contacted by law enforcement. This post discusses the next step, responding to a government subpoena.
Now that you have retained counsel and had an opportunity to review the subpoena with her, you and your counsel must now determine a strategy for responding. Normally, a subpoena that is directed to a business seeks documents–both paper and electronic; often large numbers of them. If your lawyer decides not to ask a court to quash all or part of the subpoena (that is, to limit its scope), the strategy for putting together the production will require a number of steps.
Locating the Evidence and Ensuring its Preservation
The first step is for you and your counsel to identify and locate the evidence sought by the subpoena. Remember that the evidence could be at your offices, but it also could be elsewhere, including at your home, in storage, or with your accountant or other advisor.
The search usually begins with someone from your Information Technology Department because these days, most records are electronic. Even before beginning the search, your counsel will instruct you and your employees to preserve all relevant evidence and to make sure that any information technology protocols for the automatic deletion of evidence are turned off. This is because any destruction occurring after you learn of the subpoena can lead to serious problems, including possible criminal charges.
Selecting a Vendor to Process The Production
To search and produce all the evidence called for in the subpoena may involve engaging vendors to review the evidence and prepare it for production. Many companies provide these services. They understand the nature of these productions and the care which must be taken in performing them. This process can be time consuming and expensive.
Consultation With the Government
As soon as counsel has determined the volume of the information available, she will discuss it with the government and propose a schedule for production. The production likely will be rolling because of the volume of work involved. Thus, any earlier extensions to produce typically will be continued. Counsel will work closely with you so the production proceeds smoothly.
As time goes on, the Government will learn more about that which they are investigating. This may lead to additional subpoenas for information. Additional subpoenas may also identify individuals, including your employees, that the government wants to interview. The same advice of not meeting with the government without the benefit of counsel applies. The government wanting to interview your employees also raises the issue of who will be counsel for your employees. Often, your employees will need their own lawyer, separate from your company’s lawyer.
Collecting and producing evidence to the government can be expensive and time-consuming. But usually, it is unavoidable. The best you can do is engage counsel to guide you through the process in a way that is both economically efficient but that meets your legal obligations under the subpoena. This is an area in which we have extensive experience. If you need to produce evidence in response to a government subpoena, we can advise you.