Gallet Dreyer & Berkey, LLP | What Do You Do When Your Company Receives a Subpoena?
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What Do You Do When Your Company Receives a Subpoena?

06/10/2011 | Summer 2011 Newsletter
In the current prosecutorial and regulatory environment it would not be unusual for your company to receive a subpoena. It is nothing more than a request for information in the form of testimony or records. A subpoena is required to be personally handed to someone at your company’s office; it is not valid if received by mail.

It can come from a prosecutor (United States Attorney, District Attorney or State Attorney General), a regulatory agency (Securities and Exchange Commission, Internal Revenue Service), or even a legislative body (Congress, State Legislature). There are two kinds: a subpoena ad testificandum requests testimony; and a subpoena duces tecum requests records. Commonly, the subpoena will be a subpoena duces tecum for records. It will be directed to the company’s “custodian of records,” and may seek records regarding the company, or records relating to the company’s clients, customers, tenants, vendors, etc.

If the subpoena originates with a prosecutor, it will be in the name of the Grand Jury. A Grand Jury is a body consisting of 23 people which meets in secret, reviews evidence, and determines whether criminal charges should be brought. While the records sought by subpoena are supposed to be produced before the Grand Jury itself, they can often be delivered directly to the prosecutor’s office. Where the records sought are voluminous, as is often the case, they can be delivered on a rolling basis, that is, in stages as the records are located and copied. If testimony is requested by subpoena, it must take place before the Grand Jury.

There may be legal reasons for your company to refuse to comply with a subpoena. With regard to testimony, the Fifth Amendment right against self incrimination may come into play. This may also protect against the production of records under certain limited circumstances. There may also be certain privileges against production of records, such as the physician/patient or attorney/client privilege. It is important for any business that is served with a subpoena to seek immediate legal advice to make the appropriate objections to the subpoena, preserve the applicable privileges, and to deal with the prosecutor or government agency seeking the records or testimony.