Served a Grand Jury Subpoena: What to Do
Being served with a grand jury subpoena can be a stressful experience, one that is likely to unsettle even the most law-abiding citizen. Stay calm and call a lawyer with substantial experience in grand jury investigations.
Several steps necessary to respond to the investigation must be taken immediately. If you are an individual and the “ad testificandum” box is checked, this means that the empaneled grand jury has demanded your testimony at the time and date indicated. Sometimes an individual being served with a subpoena will notice that the “duces tecum” box is checked. This means that the grand jury expects certain documents from you and, typically, it expects you to bring these documents with you to turn them over to the grand jury. Perhaps you have been served with a grand jury subpoena on behalf of a company or an organization and only the “duces tecum” box is checked. You or your agent being served with this subpoena generally means that your organization or company has been effectively served and your organization or company is required to turn over the documents called for on the time and date specified unless alternative arrangements are negotiated. While your counsel is negotiating these arrangements and, hopefully, narrowing the scope of what is required to be produced to the grand jury, you and your counsel must ensure that documents are not destroyed (a separate criminal offense) and that system for preserving and collecting responsive documents is established. To illustrate one example, does your computer system automatically delete electronic documents, as that normal process needs to be stopped immediately.
The person negotiating subpoena compliance would also be well served to learn as much as possible about the investigation that is being conducted and which agencies are conducting it. This information can provide you with important information for risk analysis. For instance, if you’ve already received a subpoena, and it is an investigation by a main component of the United States Department of Justice or a United States Attorney’s Office, you may have an extremely unpleasant future ahead of your company. Government expectations about what should be produced are generally high in these agencies and, because of a wealth of expertise and resources, you can expect the cross-agency investigative teams will review everything very carefully using the latest litigation support technology.
Your counsel must also know about “voluntary disclosure” and leniency or amnesty programs. Using the Antitrust Division’s amnesty program as just one example, under certain circumstances, even after you receive a subpoena, a company or organization and its executives can obtain very substantial rewards including non-prosecution if the company or organization discloses the nature problematic antitrust conduct and cooperates in the investigation and prosecution. Even if counsel determines that your conduct did not violate any antitrust laws, it is a fair assumption this conduct is what may have triggered investigative interest, and there is always a risk that an investigation into one area could generate open another area of exposure like tax, general fraud, or other violations.