Lesley Brovner and Mark Peters Co-Author New York Law Journal Article on What to Do When You Get a Subpoena
June 23, 2020
In this New York Law Journal article, Lesley Brovner and Mark Peters explore how counsel can best respond to subpoenas and other information requests from local and state entities in anticipation of COVID-19-related fraud and other investigations.
Lesley and Mark provide useful insights about how the expected uptick in fraud claims will play out and how best to respond based on their time at the New York State attorney general’s office, as well as their years running New York City’s Investigation Department.
What To Do When You Get a Subpoena
In anticipation of expected COVID-19-related fraud and other investigations, it is critical for counsel to know how best to respond to subpoenas and other information requests from local and state entities.
By Lesley Brovner and Mark Peters | June 23, 2020
There has been a recent uptick in activity by local law enforcement. We anticipate this will accelerate in light of expected COVID-19-related fraud and other investigations. Therefore, it is critical for counsel to know how best to respond to subpoenas and other information requests from local and state entities. Based on our time at the New York State attorney general’s office as well as our years running New York City’s Investigation Department, we have a number of observations about how this will play out and how best to respond.
To begin, there are multiple ways that a state attorney general, U.S. Attorney’s Office or other local enforcement agency can request information: a simple letter request, a civil subpoena or a grand jury subpoena. The method chosen is a first clue as to the investigation’s status and the severity of any potential charges. A letter request generally means the investigation is at a very early stage and the recipient of the letter is not likely yet a target.
A subpoena is more serious. Generally, there are two types of government subpoenas: grand jury and civil. Grand Jury subpoenas indicate that a government body is investing potential criminal conduct. Civil subpoenas cover a broader range of issues including civil and regulatory issues. The subpoena can seek either testimony, documents or both.
So, what do you do if you get a subpoena? Do not panic—but do not ignore it. Failing to properly comply with a subpoena can have serious consequences, including fines for contempt and the waiver of certain rights. As such, there are two immediate steps you need to take upon getting a subpoena: Preserve all of your documents and contact a lawyer with experience in this area of the law.
As to preserving documents—this includes both paper and electronic documents. One important step is to send a notice to all staff directing them not to destroy or delete documents. A second critical action is to contact your IT department to ensure that the autodelete function is turned off with regard to relevant emails. These actions should be taken immediately upon receiving the subpoena.
Also, upon receiving a subpoena you should immediately contact a lawyer with experience interacting with state and local government law enforcement and regulatory agencies. Once you have retained a lawyer, here are some of the first things he/she should do:
Determine if the subpoena is valid: Federal, state and local agencies generally have wide discretion in issuing subpoenas and those subpoenas are rarely found to be entirely invalid. However, your attorney should do an initial assessment to determine if the subpoena is valid or can be challenged in some way.
Contact the agency requesting the documents and/or testimony: There are several reasons to do this. First, to try to determine if the person or entity receiving the subpoena is a target or subject of the investigation or merely a witness. Second, where the subpoena seeks a large quantity of documents, to try to limit the scope of the subpoena or at least negotiate for additional time to make a full production.
Consider privilege: Some of your documents may be privileged and should not be produced. A lawyer will need to make this determination and create a privilege log and provide it to the authority issuing the subpoena to justify this.
Determine if you should, or are even allowed to, inform others of the subpoena. A lawyer will determine if any documents requested by the subpoena are covered by confidentiality agreements with third parties. If so, you may need to notify that third party before producing the documents. However, especially if the subpoena is a grand jury subpoena, it is important to consult with a lawyer before informing third parties about the subpoena. Some subpoenas come with requests—or even court orders demanding—that you not disclose the existence of the subpoena you received. The courts have held that court orders demanding non-disclosure need to be narrowly tailored and requests from a prosecutor that are not so-ordered by a court may not be enforceable. Still, there are serious practical and legal consequences for violation of even non-judicially ordered requests, and so you must consult with your lawyer carefully before proceeding.
Review whether there is any legal exposure and take steps to mitigate it if there is: It is important, at the outset of responding to any investigation, to determine if the individual or entity involved has any real legal exposure. If so, a lawyer experienced in dealing with these matters may be able to suggest steps to mitigate this exposure either by reforming internal practices or by working with the investigating authority.
Receiving a subpoena is a serious event for any individual or organization. However, with skillful representation these are often manageable events.
Lesley Brovner and Mark Peters are founding partners of Peters Brovner LLP, a boutique law firm focusing on internal investigations and white-collar/regulatory defense issues.
* Reprinted with permission from the May 6, 2020 issue of the New York Law Journal © 2020 ALM Media Properties, LLC. Further duplication without permission is prohibited. All rights reserved.