Corporations are finding themselves the recipients of subpoenas issued by state or federal government investigators with increasing regularity. This presents corporations with a dilemma: take a large chunk of time and expense to comply with the subpoena, or fail to comply and face serious penalties for contempt of court.
The answer is clear: unless there are valid legal grounds to object, comply with the subpoena. There are ways, however, to minimize the time involved in responding to a subpoena while ensuring that the corporation fully satisfies its legal obligations.
Subpoenas served on corporations typically request the production of certain documents by a specific date either because the company is being investigated or because the investigators believe the documents might be relevant to another investigation. The first step when a corporation is served with a subpoena should be to forward it to the corporation's attorney for review. Whether this is an in-house or outside attorney, it is imperative that the corporation's response to the subpoena be coordinated and supervised by counsel.
The attorney must obtain an understanding of the information sought, including the amount, types and location of the documents, designate the employees who possess documents and identify any problems the corporation will have responding to the subpoena. If the documents sought may be subject to the corporation's document destruction policy, the policy should be immediately suspended pending completion of the government's investigation.
The corporation's attorney should also contact the government agency that issued the subpoena to discuss its scope. A request can be made for appropriate modifications that, if accepted, would lessen the burden and cost while still providing the government with the documents it seeks. For instance, if the subpoena requests a voluminous amount of documents that would fill hundreds of boxes and require an enormous amount of time to assemble, it would be perfectly appropriate to offer to provide the same information on computer disk or microfiche. Such requests are common and the government official, while not always accommodating, will nevertheless expect such requests and, if they are reasonable, often agree to them as long as they don't hinder the investigation.
Once there is an understanding between the corporation and the government agency about the documents that must be produced, counsel should take the time to review the subpoena with the employees, explain any modifications and inform them of the process by which they are to review, collect and transmit their documents. Counsel should also make themselves freely available to answer the inevitable questions that will arise from employees and to ensure that the employees understand their legal obligations and responsibilities.
The corporation is now ready to begin collecting the documents. A written set of procedures should be circulated to employees explaining how, when and to whom documents should be sent. To ensure that deadlines are satisfied, the instructions should also include a timeline indicating when the documents must be turned over to the corporation's counsel for review.
It bears noting that it is now routine for government agencies to request the production of e-mail and voice mail. Typically, the production of such information is accomplished by reviewing employees' e-mails and voicemails as well as any backup files the corporation may possess. This task, which is often the most time-consuming and expensive aspect of responding to a subpoena, can be greatly minimized by the implementation and enforcement of e-mail and voice-mail retention policies. For example, a policy to automatically delete employees' e-mail and voicemail within a certain amount of days of being read or listened to will ensure that the amount of stored e-mails and voicemails is manageable.
The key to a successful document collection is oversight by counsel and the installation of checks and balances to ensure that each source of relevant documents within the corporation has been explored. The company can safeguard itself against subsequent allegations concerning the thoroughness of its search and production by carefully monitoring and tracking the employees possessing relevant documents and the documents themselves. Each employee should be asked to fill out tracking sheets describing in general terms the types of documents being produced. Employees should also be required to sign a declaration that they conducted thorough searches of their files, e-mail, computer disks, storage areas and other locations.
Because the company's attorney will be reviewing all documents produced by the employees for scope and privilege, the employees should be advised that the rule of thumb in identifying documents that are responsive to the subpoena is "when in doubt, produce it." Indeed, it is better to be safe than sorry. It is also far better to produce an irrelevant document than to withhold, unintentionally, a document that the government may deem relevant.
Responding to a subpoena doesn't have to be fire drill. It's just a matter of being prepared by having policies like e-mail and voicemail retention policies in place, then following a prepackaged action plan designed to save a company time, expense and aggravation.
(EDITOR'S NOTE: Kevin J. O'Connor is a member of the Government Investigations Practice Group of Day, Berry & Howard, Connecticut's largest law firm. He is based in DBH's Hartford office.)
Reprinted with permission of the Hartford Business Journal, August 9, 1999.