Insight

These Paper Tigers Have Teeth!

William R. Terpening

August 30, 2019 10:32 AM

Anticipating and Responding to Document Subpoenas From Government Authoritiesin Federal MattersRecent events in the securities industry and other regulated areas have virtually ensured that many companies willreceive subpoenas for documents from federal authorities. Often, companies will receive the subpoena from theDepartment of Justice in the context of a white collar criminal action against a third party. Subpoenas may also arrivefrom the Securities and Exchange Commission or another regulator. Regardless of the source, the general approachfor responding is substantially the same, and the consequences for failing to follow those rules can be severe.Physically gathering documents and responding to a subpoena can be costly and disruptive, and managing theresponse can be more complicated than one might expect. Creating a record that demonstrates “good faith”compliance is vital.Companies that prepare a written plan, in advance, will be better positioned to respond to subpoenas efficiently, withminimal disruption. A written plan also ensures that, if mistakes occur, the company and its employees can point to apositive retention process, which is inconsistent with the corrupt mental state element required for federalobstruction of justice prosecution.Once the investigation starts and the subpoena appears, the consequences of mistakes while responding are striking.Federal law provides a wide range of punishment for obstruction of justice and witness tampering to address noncompliance.1 For this reason, companies (and, more specifically, their attorneys) must tightly control the documentgathering and production process. A small investment, and planning on the front end, will prevent costly nightmareson the back end.The end results of the process of gathering, reviewing, and producing documents in response to a subpoena shouldbe twofold: (1) presenting the documents that are responsive (and not privileged), and (2) preparing a documentedsummary of steps taken, personnel involved, locations searched, etc. In many cases, after the documents are

produced, it may take months for regulators to review the documents.

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These Paper Tigers Have Teeth!

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