Regardless of whether your business is big or small, receiving a subpoena from a federal agency can be stressful. It may feel as if the balance of power in this transaction overwhelmingly tips in favor of the requesting agency, in whose corner sits the heavyweight known as federal law. Adding to the list of concerns, subpoena requests may also be expansive, offering as little as two weeks to respond. And even though receiving a subpoena does not necessarily mean that your company is under investigation, that lingering question creates unease that does not quickly dissipate. Developing and instituting a response plan for your company long before a subpoena hits your desk is part of proactive risk management, and it can greatly lessen the stress factors.
Following are eight practical tips to help you develop a subpoena response plan.
- Institute a Legal Hold. Work to identify categories of documents that may be responsive to the subpoena and the custodians who may have documents or data requested by the agency, and implement a legal hold.
- Identify a Core Response Team. The team will undoubtedly include in-house counsel, IT managers, and other key officers of the company. Depending on the scope of the subpoena, outside counsel may also be included.
- Review the Request and Evaluate Constraints. Your core response team should evaluate the breadth of the request, the difficulty in gathering and producing the information requested, and any potential problems with meeting the agency’s expectations. How is the information stored? Where is it stored? Is it practical to produce the requested information in the time specified by the agency?
- Prepare for the Call. Using your assessment of the subpoena, prepare a strategy for contacting the agency before you begin gathering documents. Realize that the agency may not know what information you possess or how it fits into their investigation. Be upfront and ask the agency exactly what information they need. Can you ask for more time? Can you narrow the scope from the outset? Can you produce documents on a rolling basis?
- Contact the Agency. Be cordial and polite. This first call can open a cooperative dialog, which can be invaluable for clarifying and narrowing the scope of the subpoena and obtaining deadline extensions when necessary. Your role is to educate the agency. The agency doesn’t know how information is stored, how burdensome it may be to produce, or perhaps even the scale of the information they have requested. Ask the agency how they want the information produced and be prepared to offer suggestions.
- Offer a Meaty First Production if Feasible. Outside counsel can add particular value and cost savings at this point in the process. With proper preparation and response, your first production can also be your last. Be sure to follow up in short order to ensure that the agency has what it needs.
- Connect the Dots. Show the agency which documents satisfy which requests. Don’t just dump the information haystack. Clear organization can save time and money, and will likely expedite the process.
- Cooperation, Cooperation, Cooperation. Don’t make the process more adversarial than necessary. A thorough response to one subpoena can help establish goodwill and credibility in dealing with future requests.