The U.S. Attorney works with a wide variety of agencies and division to investigate and prosecute multiple crimes, specifically securities, business and consumer fraud. In particular, the Securities and Exchange Commission, or SEC, can conduct investigations that demand the production of information, whether through testimony or documents. The SEC has only civil enforcement power, and therefore, when matters become criminal, they will refer the case to the U.S. Attorney’s Office and the F.B.I. The agencies very often cooperate and investigate cases simultaneously – therefore, if you receive an SEC subpoena, it is best to proceed as though you have also received a subpoena from the U.S. Attorney’s Office, and seek legal counsel as soon as possible when responding to these requests.
Compliance with the subpoenas are mandatory – unless there is an agreement or court order to the contrary. If you hire competent and experienced counsel, they may be able to negotiate either the time required of your response, or limits to the scope and breadth of the response. Very often, subpoenas requesting production of documents are overly broad and can constitute a ‘fishing expedition.’ If the subpoena is too broad, an attorney will likely preserve all of their objections in the response, and can then seek a motion to quash the subpoena, meaning the Court will render it useless. However, the Court typically gives the U.S. Attorney’s Office very broad power and discretion in issuing subpoenas, so these motions are rarely granted. Therefore, it is more beneficial to hire a good, strong attorney who can engage in negotiations with the U.S. Attorney’s Office to expand timelines required for your response, and firm up what exactly it is their investigation is seeking. Additionally, the attorney will likely be able to find out more about the investigation to determine what is required for your response.
Once you receive a subpoena, you must take all reasonable steps to preserve evidence – this includes electronic evidence such as e-mails or text messages. If you do not preserve this evidence, you can be held criminally liable, even if you are not involved in any of the fraud allegations in the first place. An attorney can also help you respond to the subpoena by preserving objections, and ensuring that you do not include (or exclude) anything that will mislead the investigators. Misleading a federal agency is a criminal act, and can also cause them to be less inclined to work with you or your attorney in matters of negotiation.
Something that has become a hot-button issue with subpoenas in recent years has been the ability of prosecutors to require those who receive subpoenas to not disclose the fact they had been served. Sometimes, federal subpoenas arrive with the following phrase in bold, capitalized letters: “You are hereby directed not to disclose the existence of this subpoena, as it may impede an ongoing investigation.” Some defense attorneys have sought court clarification, alleging that prosecutors have infringed on constitutional rights when asking witnesses to keep quiet about subpoenas. Increasingly, recipients believe that this is a mandate, required by law, rather than just a request. However, in cases involving crimes against financial institutions or drug trafficking, the law does require witnesses to not disclose the fact they received a subpoena. Therefore, if you do receive a subpoena, chances are that you are not required to keep quiet; however, it is best to seek legal advice if your subpoena requires confidentiality.
