What documents am I required to produce?
The documents demanded should be shown under the heading “documents to be produced.” As indicated, it is critical that no documents be destroyed or hidden once the subpoena has been received, whatever their form (hard copy or digital). Destroyed, in this context, means that any normal email deletion or document disposal programs need to be halted immediately. Further, as noted, the scope of the production demands may often be limited through a negotiation with the prosecutor. Experienced prosecutors know that they usually have to draft subpoenas without prior knowledge of the recipient’s record keeping system, and such negotiations are common.
You are also under no obligation to surrender any documents at the time of service if the “documents to be produced” box is checked. The exception is if the subpoena is being served on a business and the subpoena is clearly marked as a “forthwith subpoena.” Even here, the grounds justifying a forthwith subpoena can be flimsy and poorly thought out by enforcement agencies and you may wish to seek legal counsel. A good idea is to invite the agents in, ask them to sit in a conference room, and ask for a few minutes to get your lawyer on the phone.
Also, unless there is a valid search warrant, you are also under no obligation to consent to a search of your person, your premises or your vehicle. Under many circumstances you may under no obligation to surrender your phone, briefcase, computer or handbag without such a warrant or a forthwith subpoena. If you are at a company or organization and agents appear to execute a search warrant, call your attorney immediately and connect him with the agent in charge of the search scene.
The court system is replete with examples where law enforcement serving a subpoena has significantly advanced investigations. Recently, a 20 year old man with no criminal record was suspected of phoning in a bomb scare to a high school so that he could spend some time with his 16 year old girlfriend. Police quickly got past the phone app that blocked his caller ID, and questioned him. The man admitted to the bomb scare and voluntarily surrendered his phone. In reviewing information on the phone, agents looked for evidence of other crimes. Recovered from the cellphone was an explicit video of the man and his girlfriend. He made private use of this video and there was no suggestion he intended to publish the video file. Even though the state age of consent was 16, under federal law because it is illegal to videotape a minor, he received 18 months in federal prison and included on the sexual offender registry for the rest of his life.
The general rule is do not answer questions and do not voluntarily turn over evidence. Ask for a few minutes so that you can call your attorney immediately.