Those unfamiliar with the federal criminal process feel under- standable anxiety when served with a grand jury subpoena.
Lawyers representing subpoena recipients often experience a similar reaction, especially when they lack familiarity in handling such matters. While Federal Rule of Criminal Procedure 17– which governs grand jury subpoenas–provides some guidance, representing a client based solely on a review of its contents leaves counsel ill-equipped to deal with the challenges at hand.
The seemingly simple and straightforward language of that pro- vision conceals the practical realities of the grand jury subpoena response process, which are far more complicated and nuanced than might appear at first blush. With those challenges in mind, this article endeavors to serve as a primer for lawyers, especially those uninitiated to the federal criminal process, to protect the interests of their clients by identifying and dealing with the key legal, factual and ethical issues potentially triggered by the issuance of a grand jury subpoena.
Understanding the Applicable Legal Framework
The Relevant Provision
None of the Federal Rules of Criminal Procedure apply specifical- ly to grand jury subpoenas. By its terms, Federal Rule of Criminal
Procedure 17 relates to trial proceedings, and authorizes the issuance of subpoenas to either “command the witness to attend and testify” or “order the witness to produce any books, papers, documents, data, or other objects the subpoena designates.”1 Nevertheless, courts have regularly applied Rule 17 in the context of evaluating grand jury subpoenas for testimony and documents, focusing on the rule’s language empowering the court to “quash or modify the subpoena if compliance would be unreasonable or oppressive.”2
The Scope of the Grand Jury’s Authority
Oft-quoted language by the Supreme Court notes that the grand jury “can investigate merely on suspicion that the law is being violated, or even just because it wants assurance that it is not.”3 When exercising this authority, the grand jury has a right to “every man’s evidence.”4 This means, as a practical matter, that subpoenas issued during the grand jury’s investigative process are subject to few limitations.
A party seeking to demonstrate that compliance with a grand jury subpoena would be “unreasonable or oppressive” because the information sought is irrelevant has a steep hill to climb. A relevancy challenge will be denied unless the objecting party can meet the onerous burden of showing that “there is no reasonable possibility that the category of materials the Government seeks will produce information relevant to the general subject of the grand jury’s investigation.”5
Beyond its broad authority to collect information, the grand jury’s power is also aided by the absence of jurisdictional and procedural limitations often present in other contexts. The grand jury is not constrained by procedural or evidentiary rules and claims of privacy or competence are not valid bases to defeat a subpoena.6 Grand jury subpoenas need not be supported by probable cause, and those issued through normal channels enjoy the presumption of validity.7
The grand jury’s powers are not unlimited, however. Courts have rejected subpoenas which are designed to conduct a civil investigation, or to harass or intimidate the subpoena recipient.8 Subpoenas designed to allow the government to use the grand jury to gather evidence against a defendant post-indictment are also subject to being invalidated.9 Valid claims of privilege, including the privilege against self-incrimination, the attorney- client privilege, and the marital privilege, also serve to limit the grand jury’s reach.10
How to Represent a Grand Jury Subpoena Recipient
Examine the Language of the Subpoena
The starting point in determining how to respond to a grand jury subpoena is to understand fully its content. The body of the subpoena will identify what is seeks: “Ad testifacandum” subpoe- nas require a witness to testify; “duces tecum” subpoenas require the production of documents or objects. To evaluate a duces tecum subpoena, counsel should focus on the scope of the requested information. The face of the subpoena form provides space for a listing of the requested documents or objects, but often–particularly when the case is complex–the subpoena will append a listing of additional materials sought. A typical subpoe- na attachment will not only detail the type of documents or objects sought, but also define key terms, designate the relevant time period and require that claims of privilege be detailed.
It is important to understand that in many federal districts, subpoenas in criminal cases are served without the court’s prior review. Simply because the subpoena has been signed by clerk does not mean that a judge has even reviewed its contents before- hand, much less concluded that the information sought falls within the scope authorized by law. Subpoena recipients are expected to challenge those requests that are objectionable. In the absence of such an objection, courts typically do not even exam- ine grand jury subpoenas, much less opine on their legitimacy.
Gather Information to Allow for Informed Decision-Making
1. Meet Threshold Obligations
Once counsel understands what the subpoena seeks, it is important to prevent the client from making the situation worse. Subpoena recipients should be instructed to refrain from having any substantive communication with anyone other than counsel until the landscape of the investigation can be appropriate sur- veyed. Even seemingly innocuous conversations between indi- viduals can have serious consequences when examined through the lens of a grand jury investigation. At this stage, counsel
should communicate in terms which are absolute and unequivo- cal: the client should not talk to anyone about anything even remotely related to the investigation, until further information can be gathered and analyzed.
In the context of a request for documents, an additional pro- phylactic measure is appropriate to ensure that the client avoids altering or destroying potentially relevant information.
Depending on the structure and sophistication level of the client, this directive can be issued in a number of ways. In the corporate context, the most common is a “litigation hold” advising relevant individuals of the existence of the subpoena and the need to retain potentially responsive documents in their original form, regardless of how or where they are maintained. Recipients of this directive should be advised that destruction of documents will not only diminish the company’s credibility in the govern- ment’s eyes, but may also lead to criminal charges against indi- viduals for obstruction of justice.
2. Establish Communication with the Government
Next, it is important to determine, to as great an extent possi- ble, what the underlying case is about and where the client fits. This process is not without challenges. At the grand jury stage, the Assistant U.S. Attorney handling the matter may be prohibit- ed by law from disclosing certain details about the nature of the investigation.11 Even if the prosecutor is not constrained from sharing particular information, he or she may nevertheless decline to divulge particulars for fear of revealing the investiga- tion’s focus or comprising litigation theories and strategies.
Nevertheless, certain measures can and should be employed in an effort to learn the layout of the case, and the client’s place in it. Upon receipt and review of a grand jury subpoena, counsel should contact the Assistant U.S. Attorney handling the matter.12 No harm results from asking all types of questions about the case, including the type conduct being examined, which individuals or entities are under investigation and the statutes being considered. The prosecutor can simply decline to answer those questions deemed out of bounds for legal or strategic reasons.
At a minimum, during this conversation counsel should seek to determine where the government views the client on the spec- trum of culpability. At the grand jury stage, parties fall into one of three groups: target, subject or witness. A “target” is “a person as to whom the prosecutor or the grand jury has substantial evi- dence linking him or her to the commission of a crime and who, in the judgment of the prosecutor, is a putative defendant.”13 A “subject” is “person whose conduct is within the scope of the grand jury’s investigation.”14 The term “witness” is not formally defined, but is generally understood to mean a person who has knowledge of facts relevant to the investigation, but who is not deemed likely to have criminal liability.
Whether or not the government is forthcoming about the underlying grand jury investigation, counsel for other parties involved in the investigation may serve as a source of informa- tion. Counsel should endeavor to learn, whether from the client or other sources, who else might have information or be involved. From there, counsel can consider whether it would be mutually beneficial to contact counsel for other interested parties and seek to share information either informally or via a joint defense agreement.15
During this analysis, counsel should also remain mindful of a seemingly basic question: does the client have responsive infor- mation? If not, the process of responding often can be short-cir- cuited since no one has an interest in expending resources to summon a witness with no relevant knowledge. Understand that identifying this question is much easier than answering it, and recognize that bare representations that “my client says he doesn’t know anything” are likely be met with great skepticism, especial- ly where the individual is implicated in potential wrongdoing. In those instances where counsel can credibly demonstrate to the government at the outset that the client lacks the necessary vol- ume and quality of information, however, the expenditure of sig- nificant resources can often be avoided.
3. Evaluate Potential Privilege Claims
Assuming the client does possess at least some information of value, the next step is to determine whether reasons exist to decline to respond to the subpoena. In the grand jury context, the most common reason is because testifying or producing doc- uments may increase the chances that the client will be charged with a crime. Individuals possess a constitutional right not to incriminate themselves, and may assert that privilege in any set- ting.16 Corporate entities have no self-incrimination protections, however.17
Understand that the existence of viable privileges will not nec- essarily excuse performance under the grand jury subpoena.
When the witness intends to assert a privilege against self- incrimination, most prosecutors will not require an appearance before the grand jury. Claims of privilege may not be asserted in blanket fashion, however, and, as a result, on occasion it may be necessary for the witness to invoke the privilege on a question- by-question basis. This is a challenging, fact-dependent process, and counsel should be exceedingly careful when traveling this route. Where certain documents are subject to claims of privi- lege, counsel will almost always be required to generate a privi- lege log detailing a sufficient basis for an evaluation of such claims. On occasion, the government may seek in camera review by the court in order to ensure thorough evaluation of the issue.
4. Maintain an Ongoing Dialogue with the Government
Regardless of whether the grand jury subpoena seeks testimo- ny or documents, communication with the government is essen- tial to allow for informed decision-making. The discussion above referenced the need to establish communication with the govern- ment at the outset of the process, but counsel should recognize that ongoing interaction with the prosecutor plays an essential role in protecting a client’s interests. Information is a precious commodity in this context, and counsel should take advantage of any opportunity to gather facts which shed light on matters of concern. Moreover, to the extent it is in the client’s best interest to work cooperatively with the government, communication is vital to ensure that the efforts undertaken have been fully vetted by the Assistant U.S. Attorney handling the matter. No prosecu- tor likes surprises, and embarking on a course of action which undermines the grand jury’s efforts is likely to evoke a swift and sharp response from the government.
In the document production context, open communication with the government can bring an additional advantage: a reduc-
tion in the burden otherwise associated with responding to the subpoena. Counsel experienced in responding to duces tecum subpoenas understand all too well that the ability to store mas- sive quantities of information electronically can be a curse as well as a blessing. Any company forced to spend the resources required to sift through all of its stored data to find documents relating to a particular topics and individuals would likely agree. Grand jury subpoenas to corporate entities are often expansive in scope, and, by their literal terms, can require production of huge volumes of documents at considerable expense.18 The subpoenas are seldom limited to specific types of documents (e.g., “all accounts payable journals”); usually the requests seek all infor- mation relating to a particular subject matter (e.g., “all docu- ments relating to consulting contracts or payments”).
In an environment where literally millions of pages of material can be stored electronically, often the prospect of full compliance with the subpoena in its original form means spending a fortune to gather, review for privilege and produce the information.
Sometimes, the government either cannot or will not agree to narrow the scope of the subpoena. More often, however, prosecu- tors are amenable to a dialogue about ways for the grand jury to get the information it needs and for the subpoena recipient to avoid spending huge sums to comply. Usually there is only one way to determine if the government is open to negotiating the contours of the subpoena: by raising the issue.
The chances for success increase dramatically when a company seeking to narrow a subpoena’s scope can point to specifics about the burden imposed. The ability to show that production of all e- mails relating to a particular subject matter will cost $400,000 means far more than generalized complaints about the breadth of the subpoena. In this context, genuine attempts to strike a bal- ance between the grand jury’s right to information and the com- pany’s financial health will almost always be considered by the government; efforts to avoid producing responsive information simply because the company does not want to spend the time or the money will not.
To maximize the likelihood of obtaining concessions, counsel should be prepared make a specific, credible proposal to the gov- ernment. This can include suggesting an incremental approach: e.g., the company will produce certain types of documents (“everything but e-mails initially”), and, if the government is not satisfied with the information produced, the scope can be expanded. The company may also suggest eliminating certain requests that are likely to be disproportionately expensive, espe- cially where it offers the prospect of far more relevant materials in the short term (e.g., “the company will provide all consulting invoices for the past year within two weeks; you agree to hold in abeyance the request for the previous five years since they are in offsite storage and available only on microfilm”). Each situation will depend on its own facts, but the strategy of engaging the government on the issue makes sense in virtually every scenario.
5. Create a Methodology for Review and Production of Documents
Once the scope of what the company must produce is relatively clear, counsel must develop a plan for how the documents will be gathered and produced. Efforts invested on the front end–making clear the methodology of how documents will be searched for, reviewed and produced–will pay huge dividends down the line. Few
outcomes are more frustrating to a lawyer, or more infuriating to a client, than having to repeat steps in the subpoena response process.
Depending on the scope of the subpoena and the client’s finan- cial wherewithal, counsel may be heavily or hardly involved in the process of gathering and reviewing documents. Regardless, counsel should endeavor to ensure uniformity, and confirm that all individuals gathering and reviewing documents for produc- tion are applying the same standards. Counsel might also consid- er vetting its proposed review and production methodology with the government before investing substantial efforts in review and production: better for everyone to be on the same page at the outset, with the ability to negotiate and adjust as necessary, than for time and money to be wasted due to a misalignment of expectations and performance.
Counsel should also be mindful that the government may demand detail–via testimony under oath–about how documents were searched for and produced. The concern underlying this request is that documents exist within the subpoenaed party’s possession, custody or control, but their contents were not reviewed either because they were carelessly overlooked or because someone purposefully decided not to expend the effort to do so. In the grand jury context, accounting for the production process involves presenting a witness, designated as the “custodi- an of records” of the entity, to provide the necessary details of the document production effort. If required to testify, that witness must be prepared to provide information on topics including:
- where and how the entity stores documents;
- which documents and other information are maintained;
- how available materials were searched to determine if respon- sive documents existed;
- who participated in the search for responsive documents;
- what measures were employed to ensure that potentially responsive documents were not destroyed, altered or otherwise not produced in the original format;
- whether the entity expected to find certain documents but did not; and
- whether claims of privilege were being made as to any other- wise responsive
Not every company employee can fulfill the obligations of the custodian of records, so counsel should be circumspect in identi- fying potential candidates. The individual chosen should be pre- pared with the understanding that he or she will serve as the voice of the company in the grand jury.
6. Prepare Testifying Witnesses
However little experience counsel may have with the grand jury process, the client will most likely have even less. Because the errors associated with a lack of preparation can be amplified and misinterpreted in the grand jury context, it is absolutely essential that counsel take the time to prepare those witnesses who will testify before the grand jury. This means undertaking a comprehensive and painstaking review of both the procedural and substantive aspects of the process.
Counsel should not only review relevant factual information with the client, but also explain basic concepts such as how the grand jury functions, how the questioning will occur and the ability of the witness to leave the grand jury room to confer with
counsel. Testifying before the grand jury is unlike anything most civilians–particularly those who have had limited interaction with the judicial system–will ever experience. Taking the time to explain the process goes a long way toward removing uncertain- ties and reducing the stress otherwise caused by having to testify.
As part of this effort, counsel should take pains to make clear the witness’s overriding obligation: to tell the truth. If a truthful answer would tend to incriminate the witness, the solution is invocation of the privilege against self-incrimination, not providing a non-truth- ful answer. While this (hopefully) seems obvious to every lawyer, it may not be to clients. Counsel who fails to make clear that a wit- ness who testifies falsely in the grand jury creates (or compounds, as the case may be) serious problems has failed in virtually every facet of the representation. Whatever methods are required to con- vey this message–repetition, detailed explanation of the conse- quences, mock questioning designed to expose such intentions on the client’s part–should be employed.19 The potential ramifications of a witness testifying falsely are simply too great.
Navigating a client through the process of responding to a fed- eral grand jury subpoena can be a challenging process. The prospect of incurring the government’s wrath for doing too little to respond weighs heavily, as does the possibility of inviting the client’s dissatisfaction for doing too much. Beyond the financial concerns, counsel must be mindful of the scope of the client’s exposure and constantly evaluate how strategic choices impact possible outcomes.
The task of representing a client in this context is not an impos- sible one, though, even for those who lack substantial experience in the grand jury matters. Despite the potential pitfalls which mark the legal landscape, reliance on certain core principles can guide counsel through the process. Understanding the importance of vigilance in gathering information, both from the client and from outside sources, recognizing the need to develop a plan at the out- set and modify it as circumstances warrant, establishing and main- taining a credible dialogue with the government and taking the time to prepare witnesses for testimony are vital elements in fulfill- ing counsel’s responsibilities. By approaching the task of represent- ing those subpoenaed to the grand jury with these considerations in mind, counsel will be best equipped to safeguard the best inter- ests of their clients.
Republished with permission. The article "What to Do When a Client Receives A Federal Grand Jury Subpoena" was published in the September 2012 edition of The Alabama Lawyer.