As the nation’s chief domestic investigative agency, the Federal Bureau of Investigation (FBI) has substantial authority to collect information through a variety of different means. This includes utilizing subpoenas to compel witnesses, targets, and suspects to provide records and testimony under threat of criminal prosecution for supplying false or misleading information. As a result, responding to an FBI subpoena is a serious matter, and it needs to be treated accordingly.

Of course, receiving an FBI subpoena also presents the risk of prosecution for a substantive federal offense. If federal agents have reason to believe that a subpoena recipient has committed a federal offense, then the FBI’s investigation could lead to a grand jury subpoena and indictment, and ultimately to criminal prosecution. Civil charges are a possibility in many cases as well; and, even in civil matters, defendants can face substantial penalties.

So, if you have received an FBI subpoena, what are your next steps? Here are 10 questions you will need to try to answer as quickly as possible in order to determine how best to respond:

1. Are You a Witness, Suspect, or Target in the FBI’s Investigation?

One of the most important things you need to know is whether the FBI is currently treating you as a witness, suspect, or target. While this will not affect your obligation to respond to the FBI’s subpoena, it will (or should) greatly influence the steps you take when preparing your response.

Depending on the circumstances involved, it may be fairly clear that you fall into one of these three categories, or FBI agents may choose to play their cards close to the vest. If you have received a target letter in addition to receiving an FBI subpoena, then there is little room for doubt. Conversely, in some cases, FBI agents may choose to make clear that a subpoena recipient is not implicated in the agency’s investigation in hopes of securing the recipient’s cooperation. However, in many cases, the answer to this question will not be clear from the outset, and it will be necessary to engage legal counsel to interface with the investigating agents in order to discern the subpoena recipient’s posture in the inquiry.

2. What is the Substantive Focus of the Investigation?

Knowing the substantive focus of the investigation is important for a couple of key reasons. First, it allows you to assess any potential civil or criminal exposure. Once you know what the FBI is investigating, then you can determine if you (or your company) is at risk.

“When responding to an FBI subpoena, there are two sets of risks you need to consider. The first set involves failing to respond to the subpoena appropriately, while the second involves the risk of facing prosecution based on the allegations underlying the FBI’s investigation.” – Dr. Nick Oberheiden, Founding Attorney of Oberheiden P.C.

Second, it allows you to begin formulating your response to the subpoena. FBI subpoenas will often seek voluminous records and information. As a subpoena recipient, you have an obligation to produce all responsive and non-privileged records and information in your custody—and you are entitled to withhold any records or information that are impertinent to the FBI’s inquiry. Unless and until you know the substantive focus of the FBI’s investigation, you will find it extremely difficult (if not impossible) to determine what records and information are relevant to the investigation.

3. How Long has the Investigation Been Ongoing?

Understanding the current status of the investigation is particularly important for suspects and targets. Again, this will not directly influence your response obligation, but it will (or should) influence the measures you take in addition to complying with or challenging the FBI’s demands.

Generally speaking, the longer an investigation has been ongoing, the more evidence the FBI will have in its possession, and the closer federal prosecutors will be to pursuing an indictment. Thus, the later in the investigative process you receive an FBI subpoena, the greater the chance – in most cases – that your response will have a direct impact on whether or not the investigation leads to charges.

4. Are You Being Subpoenaed in Your Individual or Corporate Capacity?

Upon receiving an FBI subpoena, it is important to carefully review the subpoena in order to determine whether you are being subpoenaed in your individual or corporate capacity. You are only required to respond in the capacity in which you are subpoenaed—and this means that you might not need to disclose all pertinent information of which you are aware.

If you have been subpoenaed as a corporate representative or corporate records custodian, you will need to work with the company’s legal counsel in order to determine what storage media and other sources fall within the subpoena’s purview. If you have been subpoenaed in your individual capacity, you will need to work with a lawyer to ensure that you prepare a compliant response while still protecting any information that is not subject to disclosure.

5. Does the Subpoena Require Testimony, Documents, or Both?

In addition to identifying the capacity in which you have been subpoenaed, you will also need to review the subpoena to determine the nature of the response that is required. FBI subpoenas can require testimony (subpoenas ad testificandum), documents (subpoenas duces tecum), or both.

This is one question that should be relatively easy to answer, as the nature of the response required should be evident from the face of the FBI’s subpoena. The subpoena should also include an attachment that lists the categories of information or records the FBI is requiring you to provide.

6. Are You Entitled to Withhold Any Privileged Information?

When responding to an FBI subpoena, you must ensure that your response is compliant, but you must also ensure that you protect any information you are entitled to withhold. Aside from information that is simply non-responsive, the information you can withhold generally falls into two categories: (i) information protected by the attorney-client privilege, and (ii) information protected by the privilege against self-incrimination.

In order to properly withhold privileged information, FBI subpoena recipients must identify the privileged information, redact all relevant documents, and make clear the basis on which pertinent information is being withheld. This must be done carefully, as failing to redact even a single piece of privileged information could lead to an inadvertent waiver of the relevant privilege.

7. Do You Have Grounds to Challenge the FBI’s Subpoena?

In addition to carefully preparing your response to the FBI’s subpoena, it will be important to assess any possible grounds for challenging the subpoena as well. Crucially, however, this is something that should generally be done in parallel with preparing a substantive response (rather than as a precursor), as you will most likely need the full time allotted to gather, assess, and prepare all relevant and non-privileged information.

While it is possible to challenge an FBI subpoena in some circumstances, the grounds available are limited. Additionally, in most cases, a successful challenge will only serve to reduce the scope of the subpoena—rather than quashing the subpoena in its entirety. With that said, if procedural deficiencies, overbreadth, vagueness, or other issues provide grounds to challenge the subpoena, then filing a motion to quash may be a strategic and worthwhile endeavor.

8. Can You Timely Comply with the Subpoena’s Demands?

Preparing a response to an FBI subpoena is a time-intensive endeavor. In most cases, subpoena recipients will be working down to the wire to meet their response obligations. With this in mind, upon receiving an FBI subpoena, it is essential to develop a response timeline by working backward from the due date to identify, organize, and plan all necessary steps.

If you have concerns about meeting the response deadline, then this is a matter that you will need to address sooner rather than later. The investigating agents may be willing to give you more time, and they will be far more receptive to your request for an extension if you identify your concerns as soon as possible. If you ask for more time at the eleventh hour, this will not be looked upon favorably, and you may find yourself in a position where you are unable to timely comply with your subpoena’s demands.

9. What is Your Risk of Facing Federal Prosecution?

Taking all of the above considerations into account, what is your risk of facing federal prosecution as a result of the FBI’s investigation? If you are able to comply with the subpoena without disclosing information that implicates you (or your company) in the FBI’s investigation, then your risk may be fairly low. On the other hand, if the subpoena presents challenges that you cannot fully manage, or if the FBI has already gathered significant evidence from other sources, then you may need to begin thinking about a civil or criminal defense strategy.

10. What is Your Deadline to Respond?

Finally, as mentioned above, meeting the deadline to respond to an FBI subpoena requires careful planning; and, even with careful planning, it can pose an insurmountable burden in some cases. As a result, upon receiving an FBI subpoena, it is imperative to identify the response deadline and get to work immediately.

Due to the challenges and risks involved with responding to an FBI subpoena, all response efforts should be undertaken with the advice and leadership of experienced federal defense counsel. Your defense counsel can assess your risk in an underlying investigation as well; and, if necessary, formulate a defense strategy focused on achieving a favorable result without charges being filed.