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If you receive a federal subpoena, you probably have some questions. Maybe you’re not sure why you’ve been subpoenaed, what information they’re seeking, or whether you can withhold any privileged records. You might even be wondering if you can just ignore the subpoena entirely. Maybe you don’t want to assist the government with their investigation, or you’re concerned about the consequences of cooperating, and you’re rather just hope the problem goes away.
In a nutshell, ignoring a federal subpoena is a bad idea. You are required by law to respond to the subpoena. When you ignore a subpoena, you’re actually creating more questions for the prosecution. The courts will want to know why you chose not to comply and what you’re hiding. You could also be held in contempt by the court.
There are significant risks to ignoring a federal subpoena, without the likelihood or rewards. When you ignore a subpoena, three things happen:
* The investigators will assume there’s a reasons you’ve chosen not to comply. While this not have any bearing on your guilt or your likelihood of being convicted, it does make investigators wonder what you’re trying to hide. This may lead to more in-depth investigations or reduce your ability to negotiate.
* You’ll face a motion to compel. If you don’t comply, investigators can ask the court to issue a motion to comply, basically an order insisting that you comply with the subpoena.
* You’ll face contempt of court charges. If you still don’t comply, the court can find you in contempt of court. This can lead to fines or imprisonment, even if you’re not prosecuted as a result of the underlying investigation.
While you are required by federal law to respond to the subpoena, there are several different ways that you can respond. Since you’re now know you’re not going to simply ignore the subpoena, you have three main options:
* Fully Comply: Obviously, you can choose to comply with the subpoena. This means preparing to testify and producing all requested records, without withholding anything. If you’re not the target of the investigation and aren’t concerned about protecting confidential or privileged information, this might be a good option. However, you should still obtain advice from counsel before simply complying. An experienced federal defense attorney will help you prepare for compliance and also help advise you of any risks or other options.
* Withhold Privileged Information or Documents: Another response alternative is to withholding information and/or documents if they’re protected by either attorney-client privilege or your right to avoid self-incrimination. Federal investigators cannot require you to waive your protections under the Fifth Amendment, and they can’t force you to disclose documents or information that was shared with you in a confidential attorney-client relationship. If you choose to withhold any information or documents you consider privileged, make sure you have a clear plan and follow the necessary compliance procedures. Experienced defense counsel can help ensure you maintain compliance with the subpoena while withholding privileged information.
* Challenge the Subpoena: You can challenge a federal subpoena, either in whole or in part, on various grounds. The specific procedures and grounds for challenging the subpoena will depend on two factors: the type of subpoena (such as an administrative subpoena or a judicial subpoena) and the federal agency who served the subpoena. Sometimes, it’s necessary to meet with the investigating agency before you can submit a challenge. Other times, you can immediately file a motion in federal district court to quash a subpoena, either in whole or in part. Your attorney will help you navigate the process.
There are also multiple phases you might encounter, such as:
* Reviewing the subpoena
* Completing an internal review to determine what information might be subject to privilege.
* Contacting investigators to discuss the scope and clarify any ambiguities.
* Meeting with investigators to discuss limiting the scope, and/or to discuss privileged information that might be withheld.
* Filing a motion to quash the subpoena
* Preparing a response to the subpoena
Bottom line: If you’ve received a federal subpoena, don’t ignore it but don’t go it alone. Contact an experienced federal defense attorney today to help ensure compliance while protecting your rights.