10 Days to Respond to Federal Subpoena
You just got a federal subpoena. FBI, SEC, IRS – doesn’t matter, you’re panicking. The document says “10 days to respond” but Google says “14 days under Rule 45.” Which applies to YOU? Miscalculate this deadline, you’re looking at contempt. Comply without understanding your rights, you could hand over privileged material. Todd Spodek – a second-generation criminal defense attorney with over 40 years of combined experience (his father’s practice plus his own) – has defended clients in your exact situation many, many, times. Our law firm was the lawyers for Anna Delvey in her high-profile federal case, handled by Todd personally, which became a Netflix series. Your real deadline and actual options – broken down.
Calculating Your Real Deadline (It’s Not What Google Says)
You searched “10 days to respond to federal subpoena” – but your subpoena might say 7 days, 10 days, 14 days, or 21 days depending on WHO issued it. This is the trap everyone’s falling into. The internet uniformly cites “Federal Rule of Civil Procedure 45“ which says 14 days. That’s true for civil court subpoenas, but irregardless of what Rule 45 says, if you got your subpoena from the FBI, SEC, or IRS, you’re probably dealing with an administrative agency subpoena – which commonly use 10-14 day deadlines, not the Rule 45 standard. Grand jury subpoenas often demand appearance and/or production in 7-10 days. Different types, different deadlines. Read YOUR specific subpoena – the deadline is printed right there on the document, that’s what’s controlling irregardless of what generic legal websites say.
The calculation is where people screw up, and it costs them – due to they don’t understand how federal courts count days, which is different than how you count days in regular life, which means most people are miscounting from the moment they receive the subpoena and don’t realize it until it’s too late. Let’s say your subpoena says “10 days from service” and you was served Monday, November 13th. When’s your deadline? Most people think November 23rd, counting Monday as Day 1. Wrong. Federal Rule of Civil Procedure 6(a) says you EXCLUDE the day of service and start counting the next day, which means if you got served on a Monday, that Monday don’t count. So if served Monday November 13th, Day 1 is Tuesday November 14th. Count 10 calendar days – weekends count, holidays count – so Day 10 is Thursday November 23rd. But November 23rd is Thanksgiving, a legal holiday. Your deadline extends to Friday November 24th. One miscalculation, you miss the deadline entirely, and we’ve seen judges who won’t accept “I counted wrong” as an excuse, irrespective of how reasonable your mistake was, irrespective what your intentions were – they don’t care about your good faith efforts, they care about compliance. This is why you need someone who’s been handling this many, many, times – not trying and figure it out yourself with Google, which gives you the general rule but doesn’t tell you about the exceptions and complications that apply to YOUR specific situation.
A subpoena is NOT a search warrant – people don’t understand this distinction. Search warrants require probable cause, agents show up immediately, no advance notice, evidence seized on the spot. Subpoena = deadline to respond, advance notice, you can object, you can negotiate. If you received a subpoena, FBI isn’t raiding your office tomorrow. You have TIME to respond through an attorney, review documents, assert privileges. Don’t panic like this is a raid.
Three Response Options
You think your choices are binary: comply fully or refuse and face contempt. Wrong. You got three realistic options, and which one you choose depends on what kind of subpoena you’re dealing with, what they’re asking for, and whether you got privileged material mixed in with what they want.
Full compliance works when scope is narrow, documents readily available, no privileged material. If they want three specific contracts from 2024, produce them. But “all emails from 2020-2025” with a 10-day deadline? Impossibly expensive, probably includes privileged communications you should of protected, might be tens of thousands of documents.
Negotiation is where most people don’t know what’s possible – due to they’ve never dealt with federal prosecutors before, due to they think prosecutors are inflexible and won’t negotiate on anything, which is the exact opposite of reality when you know how to speak to prosecutors properly and present your requests in ways that make sense from their perspective. We’ve negotiated hundreds of subpoena modifications in the Southern District of New York, Eastern District of New York, and nationwide – our criminal defense lawyers with many, many, years of experience know what prosecutors accept and what they’re gonna reject before you even ask. Prosecutors routinely accept scope limitations and deadline extensions when you’re requesting them properly, when you’re providing legitimate grounds based off federal rules and case law, when you’re proposing reasonable alternatives that still give them what they need without destroying your life in the process. Success rate is 60-70%. Not every request. Not automatically. But when presented properly. “I need more time because I’m busy” – rejected immediately, they don’t care about your schedule. “Production of 50,000 emails spanning 5 years within 10 days is unduly burdensome per Rule 45(d)(3)(A)(iv); we propose rolling production starting with 2024 emails within 14 days, remainder within 30 days” – accepted, because you cited the rule, quantified the burden, and offered an alternative timeline that shows cooperation. Prosecutors want compliance, not litigation. They want the documents. They don’t want to file motions and have hearings. Unlike other law firms who just tell you to comply without negotiating, who are more focused on their relationship with prosecutors and judges than on protecting your interests, we push back strategically to get scope reductions and deadline extensions that save you time, money, and stress. Every single case.
Formal objection is aggressive, expensive, prosecutors may view it as obstruction. Only works when subpoena is genuinely overbroad or violates your rights in ways negotiation won’t fix.
The Fifth Amendment Trap
The Fifth Amendment – everyone gets this wrong. You’re thinking “I’ll just take the Fifth and refuse to produce anything.” Doesn’t work that way. The Fifth Amendment protects you from testifying against yourself, but it generally does NOT protect pre-existing documents, which is the part nobody understands until they try and assert it and the judge shuts them down immediately. If the FBI subpoenas your emails, you can’t refuse on Fifth Amendment grounds – those documents already exist, producing them isn’t “testimony” (Fisher v. United States established this). For most document subpoenas (subpoena duces tecum), Fifth Amendment won’t help you. You need DIFFERENT grounds: attorney-client privilege, work product, undue burden.
But if you’re subpoenaed to testify before a grand jury (subpoena ad testificandum), you CAN assert Fifth Amendment on each question – but you still must APPEAR. You can’t refuse to show up, only refuse to answer specific questions. Understand this distinction or you’re gonna waste time asserting protections that don’t apply, which prosecutors see constantly, which makes you look like you don’t know what you’re doing, which destroys any credibility you might of had in negotiations.
Asserting privilege? Can’t just say “it’s privileged” and expect prosecutors to accept it. Federal courts require a privilege log: document-by-document list with date, author, recipient, subject, privilege asserted. Takes 40-60 attorney hours for 500 documents, irrespective of your deadline, irrespective of how much work it is. Must be done BY THE DEADLINE. No extensions for privilege logs. Start late, you’re working around the clock.
Electronic documents? Can’t just forward emails thinking that complies with the subpoena. Federal courts expect native format with metadata preserved – timestamps, routing info, attachments. Forwarding copies doesn’t comply due to the fact that metadata gets stripped when you forward, due to the fact that prosecutors need original files with complete forensic data to verify authenticity and chain of custody. Requires e-discovery vendors, costs $5,000-$50,000 depending on volume. Prosecutors will object to deficient production, and they’re gonna know it’s deficient the moment they receive it.
Catastrophic Mistakes We’ve Seen
Client handled the subpoena himself. SEC subpoenaed “all communications regarding the transaction.” He searched Gmail, forwarded 47 emails. SEC’s forensic review found 300+ responsive emails he didn’t produce – including deleted emails. Original investigation was civil enforcement. After deficient production, SEC referred case to DOJ for criminal obstruction. Misdemeanor became a felony because he didn’t understand metadata preservation.
Client asserted Fifth Amendment for documents. Grand jury subpoenaed bank records (subpoena duces tecum). He refused, citing Fifth Amendment. Court rejected it – pre-existing documents aren’t testimonial. Held in contempt. Jailed for 30 days until he produced them, then faced criminal contempt charges. Documents he eventually had to produce anyways – but now he’s got a contempt record and prosecutors view him as uncooperative, destroying any chance of a favorable resolution.
Client miscounted the deadline by one day. Counted day of service as Day 1. Submitted response on what he thought was Day 10 – was actually Day 11. SDNY prosecutor filed motion to compel same day. Judge ordered full compliance within 48 hours plus prosecutor’s fees ($8,500). Client paid $15,000 for rush e-discovery. Total cost of one-day error: $23,500.
If You Miss the Deadline
You’re panicking thinking the FBI’s gonna arrest you tomorrow, which is what most people think when they miss a deadline. Reality depends on subpoena type, and the difference between these two is massive.
Civil document subpoena: Issuing party files motion to compel. You get 14 days to respond. Court schedules hearing (2-4 weeks out). Judge orders compliance. If you still don’t comply, THEN contempt proceedings begin under 18 U.S.C. § 401. Takes WEEKS, sometimes months. Multiple chances to cure. If you missed a civil subpoena yesterday, you got time to fix this with an attorney – but don’t wait, because every day makes the judge less sympathetic.
Grand jury testimony subpoena: Fail to appear, court issues bench warrant IMMEDIATELY. Same day, sometimes within hours. Arrested wherever you are. No motion, no 14-day response, no hearing first. Grand jury contempt is swift due to the fact that you’re obstructing an active criminal investigation. Missed a grand jury appearance? Get an attorney NOW – there may already be a warrant out, and we’ve seen clients arrested at home within 6 hours.
Your 10-Day Action Plan
You got 10 days. Today is Day 1.
Days 1-2: Contact a criminal defense attorney with federal experience immediately. Attorney reviews type, calculates your real deadline per Rule 6(a), assesses scope, identifies privileges. Every day you wait is a day lost.
Days 3-5: Attorney negotiates with prosecutor on scope and timing. This is where that 60-70% success rate comes from. Attorney articulates proper grounds, proposes reasonable alternatives.
Days 6-9: Document collection, privilege review, production preparation. Forensic e-discovery, privilege logs, finalizing response. Can’t do this on Day 9.
Day 10: Compliance filed. Must be submitted by end of business, irregardless of whether you’re ready.
What NOT to do:
- Don’t ignore it
- Don’t handle it yourself
- Don’t forward emails thinking that’s compliance
- Don’t assert the Fifth for document production
- Don’t wait until Day 8
- Don’t assume “delete” means gone
Our criminal defense attorneys have many, many, years of combined experience negotiating with federal prosecutors – from the Southern District of New York, to the Eastern District of New York, to nationwide. We know what prosecutors accept and what they’re gonna reject before you ask. We’ve handled subpoenas in high-profile cases – our firm was the lawyers for clients like Anna Delvey and Ghislaine Maxwell where massive document requests had to be managed strategically under intense time pressure. Irregardless of what you’re being investigated for, you need experienced counsel who understands federal procedure. Your 10-day deadline is ticking while you’re reading this article. We’re available 24/7 at 212-300-5196 – federal subpoena deadlines don’t wait for business hours, and neither do we. Call us now.