Anticipating and Responding to Document Subpoenas From Government Authorities
in Federal Matters
Recent events in the securities industry and other regulated areas have virtually ensured that many companies will
receive subpoenas for documents from federal authorities. Often, companies will receive the subpoena from the
Department of Justice in the context of a white collar criminal action against a third party. Subpoenas may also arrive
from the Securities and Exchange Commission or another regulator. Regardless of the source, the general approach
for 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 the
response 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, with
minimal disruption. A written plan also ensures that, if mistakes occur, the company and its employees can point to a
positive retention process, which is inconsistent with the corrupt mental state element required for federal
obstruction 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 document
gathering and production process. A small investment, and planning on the front end, will prevent costly nightmares
on the back end.
The end results of the process of gathering, reviewing, and producing documents in response to a subpoena should
be twofold: (1) presenting the documents that are responsive (and not privileged), and (2) preparing a documented
summary 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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