You were just served with a subpoena from a government agency. If your first response was worry or panic, you are not alone. However, you should not allow your emotions to dictate how you respond to this situation, as legal consequences exist.
There are dozens of federal and state state agencies that might serve a subpoena, not just the FBI. While failing to comply with a subpoena can have consequences, there are also repercussions for complying with a subpoena that has procedural flaws or violates your rights.
If you receive a subpoena from a federal or state agency, the first step you should take is to reach out to an experienced attorney to understand your legal rights, risks, and next best steps.
A government agency issued subpoena is an order to produce information or documents in connection with a federal or state agency investigation, which is referred to as a subpoena duces tecum (or “SDT”). A subpoena to testify in court is called a subpoena ad testificandum.
A government agency can issue a subpoena without judicial approval. The legal standard required to issue a subpoena is simply that there is a reasonable possibility that the requested evidence or testimony would provide information that is relevant to the investigation or proceeding.
Various California and federal agencies can order the production of evidence or testimony in court through a subpoena. A subpoena from a government agency usually indicates an investigation into a criminal or regulatory violation. However, just because you are issued a subpoena does not mean that you are the target of that investigation. You may be a suspect in an ongoing investigation or a potential witness who has information about a suspect or target.
While a subpoena contains a specified date of compliance, it cannot actually be enforced without a judicial order or Motion to Compel. However, if there are legitimate grounds for challenging a subpoena, then proper procedures should be used to invalidate (or “quash”) the subpoena before the compliance date.
It is important to know that the subpoena itself does not empower a government agent to take immediate action, including entering your home or place of business or conducting a search. Without a warrant, the agent cannot do these things without your consent. You have no legal obligation to consent to a search or answer any questions. You should not do so before consulting with an attorney and you should only answer questions in the presence of your attorney.
An attorney can also help you determine if there are grounds to quash the subpoena. A subpoena can be quashed for several reasons including that:
In order to protect your legal rights, you should contact an experienced federal defense attorney immediately if you receive a subpoena from a government agency.
A knowledgeable and skilled attorney can help you to:
At Delahunty & Edelman LLP, our team of former federal prosecutors brings a balanced perspective and depth of experience to counseling and representing clients who have received a subpoena from a government agency. We are highly adept at inspecting, responding to, or quashing subpoenas when appropriate
Patrick Delahunty is a former federal prosecutor with deep experience in resolving disputes that advises individuals and companies in complex criminal, regulatory, and commercial litigation.