Receiving a federal grand jury subpoena is a serious matter. Whether you are the target of a federal investigation or prosecutors believe you have information they can use to pursue charges against another person or company, you must respond carefully in order to avoid unnecessary consequences.

At the federal level, a grand jury proceeding is an investigative process. The grand jury’s role is not to assess innocence or guilt, but rather to determine if prosecutors have enough evidence to establish probable cause to pursue charges. Thus, grand jury subpoenas often request voluminous information and records, and responding can present risks for both targets and witnesses.

“Responding to a federal grand jury subpoena is not a simple or straightforward process. There are several steps that must be taken quickly, and mistakes during this process can have significant negative ramifications.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

So, if you have received a federal grand jury subpoena, what should you do?

10 Steps to Take After Receiving a Federal Grand Jury Subpoena

Upon receiving a federal grand jury subpoena, there are several steps you should take promptly. There are also several steps you will need to take going forward in order to comply with the subpoena and avoid being held in contempt of court. Of course, it is important to keep in mind the risk of facing substantive charges as a result of the grand jury proceeding as well—and this risk should inform various aspects of your response.

With this in mind, here are 10 important steps to take after receiving a federal grand jury subpoena:

1. Review the Subpoena Carefully

A federal grand jury subpoena must be reviewed carefully to ensure a clear understanding of the recipient’s response obligations. Preliminarily, this involves discerning (i) the response deadline (or the date to appear in federal district court), and (ii) whether the subpoena requires testimony, the production of documents, or both.

Next, an in-depth review of the subpoena should focus on discerning the nature of the allegations at issue, whether the recipient is being treated as a target or a witness (if this is not currently known), and the amount of time and effort that will be required in order to comply.

2. Engage Federal Defense Counsel

After reviewing a federal grand jury subpoena, the next step is to engage federal defense counsel. The response process alone presents risks, and mistakes during the response process can potentially expose both targets and witnesses to federal prosecution.

Federal grand jury subpoena recipients must work with their defense counsel to prepare their responses, determine if (and how) to challenge their subpoenas, and determine what other defensive efforts are necessary.

3. Determine Why You Received the Subpoena

While it is necessary to comply with a federal grand jury subpoena regardless of your role in the government’s investigation (i.e. as a target or witness), knowing whether you are a target or witness is extremely important.

If you are a witness, you must be careful to avoid becoming a target; and, if you are a target, you have a lot more work to do. After reviewing your subpoena, your defense counsel will be able to discern your role and advise you accordingly.

4. Implement a Legal Hold

For records custodians and other corporate subpoena recipients, it will be necessary to promptly institute a legal hold. This is a structured and documented effort to ensure that no responsive documents get deleted, overwritten, or destroyed. Individual subpoena recipients must also ensure the preservation of responsive records—including (but not limited to) communications stored on their personal laptops, tablets, and phones.

Implementing a legal hold is a process on its own, and it is a process that companies must custom-tailor to their IT systems and operational structures. The legal hold requirement applies to records stored onsite and remotely, and it can apply to employees’ personal devices (if they use their personal devices for business purposes) as well.

5. Develop a Response Plan

With a legal hold in place, the next step is to develop a response plan. This step must be undertaken as soon as possible, as complying with a federal grand jury subpoena will often require the effective use of all time available. In broad strokes, a response plan for a federal grand jury subpoena should address:

• Identification of the individuals who will be involved in preparing the response
• Establishing lines of communication and a chain of command for the response team
• Identification of all potential sources of relevant information
• Structured document collection and review procedures
• Assembly of the response in compliance with the subpoena’s requirements

6. Evaluate Grounds for Challenging the Subpoena

In parallel with developing a response plan, the recipient’s defense counsel should evaluate all potential grounds for challenging the subpoena.

While this may involve challenging the subpoena in its entirety, it is more likely to involve seeking to limit the subpoena’s scope. Procedural deficiencies, overly-broad and unduly-burdensome requests, and vague or indefinite demands are among the potential grounds for filing a motion to quash.

7. Contact the U.S. Attorney’s Office

Contacting the U.S. Attorney’s Office to discuss the subpoena (and the government’s investigation in general) can serve several important purposes. However, due to the risks involved, this is a task that should exclusively be handled by a federal grand jury subpoena recipient’s legal counsel. Oftentimes, opening a dialogue will facilitate a reduction in the scope of a subpoena without the need for a motion to quash. For targets, it can set the stage for future negotiations regarding the allegations underlying the government’s investigation as well.

8. File a Motion to Quash

If efforts to negotiate the scope of the subpoena with the U.S. Attorney’s Office are unsuccessful, then the next step may be to file a motion to quash. The motion should be prepared strategically and seek a reasonable remedy in light of the scope of the subpoena, the nature of the proceeding, and the relevant law.

9. Prepare a Substantive Response (While Preserving All Privileges)

Preparing a substantive response to a federal grand jury subpoena can involve assembling responsive documents, preparing answers to anticipated questions, or both. When preparing a response, it is essential to meticulously preserve all privileges and ensure that submitting the response will create no unnecessary risks. This can be an immensely time-consuming task, and subpoena recipients must work closely with their defense counsel to ensure that they are doing everything necessary to protect themselves to the fullest extent possible.

10. Prepare to Appear in Federal District Court

Finally, if called to testify, federal grand jury subpoena recipients must prepare to appear in federal district court. When testifying in front of the grand jury, targets and witnesses are not entitled to legal representation, although counsel can (and should) be present outside of the courtroom. Targets, witnesses, and their defense lawyers should develop their day-of strategies in advance, and they should have a clear plan for how to approach the grand jury proceeding.

5 Mistakes to Avoid After Receiving a Federal Grand Jury Subpoena

In addition to taking these steps (among others), there are also some critical miscues that federal grand jury recipients need to avoid. Here are five examples of common mistakes that can (and do) lead to unnecessary complications in federal grand jury cases:

1. Waiting Too Long to Begin Your Response

In many cases, federal grand jury subpoena recipients will need to work feverishly until the eleventh hour in order to comply with their subpoena’s demands. If you wait to begin your response efforts, you may find that you are too far behind to meet the stipulated deadline.

2. Assuming Your Motion to Quash Will Succeed

When filing a motion to quash a federal grand jury subpoena, it is important to continue forward with your efforts to prepare a substantive response. Regardless of the strength of your arguments, you should not assume that the motion will succeed. If you do, and if your assumption turns out to be incorrect, this is another situation in which you may find that you don’t have enough time to comply.

3. Ignoring the Risks of Non-Compliance

Despite the risks involved, some federal grand jury subpoena recipients still do not take their response efforts seriously. They overlook (or ignore) relevant records, and they assume that federal prosecutors will never know. However, if you have received a subpoena, you can be fairly certain that other individuals and entities have received subpoenas as well. Federal authorities also gather evidence through a host of other investigative means. Thus, there is a very good chance that prosecutors will discover any information you withhold; and, if they do, you can expect to face swift and severe consequences.

4. Failing to Review All Responsive Documents

Prior to producing documents in response to a federal grand jury subpoena, it is imperative to review them for privilege, relevance, and other concerns. Once you provide records to a federal grand jury, you generally cannot take them back—even if you did not have an obligation to provide them.

5. Taking a “Wait-and-See” Approach

Facing a federal grand jury is not a time to take risks. It is not a time to “wait and see” if you are going to need a federal defense attorney to defend against criminal charges. Protecting yourself (or your company) requires a proactive approach, and this begins with engaging defense counsel promptly to engage with the U.S. Attorney’s Office on your (or your company’s) behalf and guide you through the response process.