Federal Grand Jury Subpoena: Do You Have to Comply?

Receiving a federal grand jury subpoena can be alarming. The subpoena may order you to appear before a federal grand jury, produce documents and electronic records, or both. It may also be the first indication that you, your business, or someone associated with you is involved in a federal criminal investigation.

The most important thing to understand is this:

Do not ignore a federal grand jury subpoena—but do not assume that you must immediately turn over everything requested or answer every question without first speaking with an experienced federal criminal defense attorney like Conaway & Strickler, PC.

Federal grand jury subpoenas carry the authority of the federal court. At the same time, important legal protections may apply, including the Fifth Amendment privilege against self-incrimination, attorney-client privilege, other recognized privileges, and the ability in appropriate circumstances to challenge, limit, or seek modification of a subpoena.

What you do after receiving a subpoena can have significant consequences for the investigation and for your own potential exposure.

What Is a Federal Grand Jury Subpoena?

A federal grand jury investigates whether there is probable cause to believe a federal crime has been committed and whether criminal charges should be brought. In the Northern District of Georgia (or in another federal jurisdiction), federal grand juries regularly meet in Atlanta.

Federal prosecutors may use grand jury subpoenas to obtain evidence from individuals, businesses, financial institutions, healthcare providers, employers, accountants, and other potential witnesses or custodians of records.

A subpoena generally takes one of two forms.

A Subpoena to Testify (aka subpoena ad testificandum)

A subpoena may command you to appear before the grand jury and answer questions under oath.

This is not the same as being invited to participate in a voluntary interview with federal agents. A subpoena is compulsory legal process.

If you have any possibility of criminal exposure, appearing without first obtaining legal advice can be dangerous.

A Subpoena for Documents or Records (aka subpoena duces tecum)

A subpoena may instead—or additionally—require production of documents, data, communications, or other evidence.

Federal Rule of Criminal Procedure 17(c) permits subpoenas seeking books, papers, documents, data, and other objects. The Rule also provides a mechanism for a court to quash or modify a subpoena if compliance would be unreasonable or oppressive.

Federal grand jury document subpoenas can be extraordinarily broad. They may seek years of:

• Emails and text messages;
• Financial and banking records;
• Corporate records;
• Contracts and invoices;
• Patient or medical records;
• Billing information;
• Accounting records;
• Tax records;
• Employee files;
• Electronic data;
• Phone records;
• Compliance materials; and
• Communications with third parties.

The fact that the government requested a document, however, does not automatically mean that the document must be produced without further analysis.

Do You Have to Comply With a Federal Grand Jury Subpoena?

Generally, yes—a valid federal grand jury subpoena cannot simply be ignored.

But “complying” with a subpoena does not necessarily mean immediately producing everything the government requests.

Contact us so we can discuss and assess whether there are grounds to object to the subpoena, negotiate its scope, assert applicable privileges, seek additional time for compliance, or ask the court to quash or modify it.

That analysis should happen quickly.

The subpoena itself will ordinarily specify the date, time, and place for compliance. Federal Rule of Criminal Procedure 17(c)(2) states that a motion seeking to quash or modify a document subpoena should be made “promptly.”

Waiting until the return date can severely limit your options.

Am I a Witness, Subject, or Target?

One of the first questions an experienced federal criminal defense firm, like Conaway & Strickler, PC may try to determine is your status in the investigation.

In federal investigations, people commonly hear three terms:

Witness: Someone believed to possess information relevant to the investigation.

Subject: Someone whose conduct falls within the scope of the grand jury’s investigation.

Target: Someone prosecutors believe has substantial evidence linking them to a crime and whom prosecutors may be considering for indictment.

Receiving a subpoena does not, by itself, tell you which category applies.

A person may receive what appears to be a routine records subpoena while simultaneously being investigated personally.

For that reason, counsel may contact the Assistant United States Attorney handling the investigation before the client responds. Depending on the circumstances, counsel may seek information regarding the client’s status and determine whether compliance can be negotiated without unnecessarily increasing the client’s exposure.

Can I Assert the Fifth Amendment Before a Federal Grand Jury?

Potentially.

The Fifth Amendment protects individuals against compelled self-incrimination.

If answering a particular grand jury question could reasonably tend to incriminate you, the Fifth Amendment may provide a basis for declining to answer that question.

But asserting the Fifth Amendment before a federal grand jury is not something that should be improvised.

A witness generally cannot simply refuse to appear because the witness believes incriminating questions may be asked. The privilege ordinarily must be asserted in response to particular questions where an answer could be incriminating.

That is one reason obtaining legal advice before the appearance date is so important.

Does the Fifth Amendment Protect Documents?

This question is considerably more complicated.

The Fifth Amendment generally does not protect the contents of voluntarily created documents merely because those documents contain incriminating information.

But producing documents can itself sometimes communicate information.

By producing records, a person may implicitly communicate that:

• The documents exist;
• The documents are authentic;
• The person possesses or controls them; or
• The documents produced are responsive to the government’s request.

This is known as the act-of-production doctrine.

The United States Supreme Court has recognized that the act of producing subpoenaed documents can, under certain circumstances, have a testimonial component protected by the Fifth Amendment.

Whether that protection applies depends heavily on the facts, including who received the subpoena, what records are requested, whether the government already knows the records exist, and whether the records are personal or held in a representative capacity for an entity.

This area of law is technical and highly fact-specific. A subpoena recipient should not assume either that the Fifth Amendment protects all requested records or that it protects none of them.

What About Corporate and Business Records?

Different rules may apply when a subpoena seeks records belonging to a corporation or other collective entity.

A business owner, officer, employee, or records custodian may be required to produce entity records in circumstances where that same person could potentially assert a Fifth Amendment privilege concerning personal testimony or personal records.

This distinction can become especially important in federal investigations involving:

• Healthcare companies;
• Medical practices;
• Pharmacies;
• Laboratories;
• Government contractors;
• Financial institutions;
• Closely held businesses;
• Accounting and tax matters; and
• Alleged fraud schemes.

Before producing company records, counsel should determine who owns the records, in what capacity the recipient possesses them, and whether producing them could create additional legal issues for the individual or company.

What If the Subpoena Requests Attorney-Client Communications?

Attorney-client privilege may protect confidential communications between an attorney and client made for the purpose of obtaining or providing legal advice.

A grand jury subpoena does not automatically eliminate that privilege.

If responsive documents include potentially privileged communications, counsel may need to identify and preserve those objections rather than simply producing the materials.

Privilege disputes in federal grand jury investigations can become complex. The Eleventh Circuit has addressed litigation involving grand jury subpoenas seeking materials claimed to be protected by attorney-client privilege, including disputes concerning the crime-fraud exception.

Other protections may also apply depending on the circumstances, including attorney work-product protection and privileges applicable to particular professional relationships.

The key is to identify privilege issues before production occurs.

Once privileged information has been disclosed to the government, attempting to undo that disclosure can be substantially more difficult.

Can You File a Motion to Quash a Federal Grand Jury Subpoena?

Yes, under appropriate circumstances.

Federal Rule of Criminal Procedure 17(c)(2) provides that a court may quash or modify a subpoena if compliance would be unreasonable or oppressive.

Depending on the facts, potential challenges may involve issues such as:

• Overbreadth;
• Undue burden;
• Privilege;
• Fifth Amendment concerns;
• Requests extending beyond an appropriate investigative purpose; or
• Other legal defects affecting the subpoena.

A motion to quash is not appropriate merely because complying with the subpoena is inconvenient or because the recipient would prefer not to provide the requested evidence.

Grand juries have broad investigative authority.

But broad authority is not unlimited authority.

In some cases, the more practical solution is not litigation at all. Defense counsel may be able to negotiate directly with the prosecutor to narrow the requested categories, modify search terms, establish procedures for privileged material, or obtain additional time to respond.

What Should You Do With Documents After Receiving a Subpoena?

Preserve them.

Do not delete emails, destroy documents, erase text messages, modify files, dispose of devices, or instruct employees or other people to remove potentially relevant information.

A subpoena recipient should ordinarily preserve potentially responsive information while counsel determines what ultimately must be produced.

This can include electronically stored information on:

• Cell phones;
• Computers;
• Email accounts;
• Cloud storage;
• Messaging applications;
• Business servers; and
• Backup systems.

Destroying or concealing evidence after learning of a federal investigation can create problems far more serious than the original subpoena.

What If the Deadline Is Too Soon?

Do not simply miss it.

Contact us immediately.

Depending on the circumstances, we may be able to contact the Assistant United States Attorney and request additional time to respond, particularly when the subpoena seeks a substantial amount of electronically stored information or requires privilege review.

But an extension should be confirmed with the government. A subpoena recipient should not simply assume that additional time is available.

Does Receiving a Grand Jury Subpoena Mean I Am Going to Be Indicted?

No.

Grand juries issue subpoenas to many people and entities that are never charged with crimes.

But receiving a subpoena can be an important opportunity to determine what is happening before charges are filed..

That pre-indictment period can be one of the most important stages of a federal criminal case.

If you have received a federal grand jury subpoena, the safest time to evaluate your options is before you produce documents or testify—not afterward.

Conaway & Strickler, P.C. represents individuals and businesses in federal criminal investigations, grand jury matters, white-collar cases, healthcare investigations, fraud investigations, and other federal criminal matters.

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