Author: Molly Donovan
This Episode Is About: Investigative Subpoenas
Why: In-house lawyers need to know what to do upon receiving an investigative subpoena in an antitrust or white-collar matter.
The Five Bullets: In-house lawyers, if I were you, I would know the following about subpoenas…
- Once you’ve been served with a subpoena, prepare a document hold and circulate it right away. A document hold is a written notification to relevant employees not to delete, destroy or alter any electronic or paper materials potentially relevant to the subpoena. The notice must unpack what that language means in plain English and should be conservative in describing what “potentially relevant” means. Three practical tips for developing and implementing the notice:
- The notice should be short—it’s okay to attach a longer memorandum but the cover email should be 3-4 paragraphs issuing clear and concise instructions on what to do and what not to do.
- Materials kept on personal devices should be covered—you should tell employees not to delete any texts, for example, related to work.
- Work with IT to shut off auto-delete functions.
- Don’t destroy anything or hide anything. For example, don’t take materials home thinking that removes them from the reach of the subpoenas—leave everything “as is.” In terms of deleting emails and texts, tell your employees: “if I were you, I wouldn’t delete your emails. Attempts to delete are detectable; it looks suspicious even if you think you’re deleting innocuous messages; and nothing really disappears—the emails will be found and you’ll be worse off for having tried to hide them.”
- Don’t create new documents. Lawyers, if you’d like employees to write down their recollections of events, meet with them to explain what you want them to document, and label the notes as privileged/prepared at your instruction for purposes of litigation as work product. But otherwise, employees and executives should not take it upon themselves to create documents that may get produced and being used against employees or the company.
- Employees should not talk to each other about the subpoena or the underlying subject matter. Those conversations aren’t going to be privileged and may end up the subject of testimony. When employees talk to each other, it can create the appearance of collusion—e., employees are coordinating with each other about what to say or not say to the lawyers or to the government. Bottom line: it looks suspicious. And, if the subpoena pertains to an antitrust conspiracy—certainly do not call your competitors and ask if they’ve been subpoenaed and how they intend to respond.
- Don’t freak out about costs and scope. While subpoena compliance can be costly and burdensome, there are almost always negotiations to pare down the subpoena as written to something narrower in scope. The deadline for subpoena compliance can usually be negotiated as well—sometimes incremental deadlines are set on a rolling basis, so you provide information bit by bit over a long stretch of time.
- Bonus Bullet! If your subpoena is from the Department of Justice and concerns an antitrust situation, there may be an opportunity for leniency. Talk to a lawyer with experience working with the DOJ and its antitrust leniency program to determine if that’s a good option. It may not be, but it’s important to think through carefully and quickly. If you do pursue leniency, the quicker you get to the government with a handle on your factual situation and ask to participate in the leniency program, the better your chances of getting a good deal.