How to React When a Subpoena Duces Tecum is Served
In our prior article in this series, we talked about subpoenas for evidence (Subpoena Duces Tecum), what they consist of and what they are used for. Now let’s talk about how to react and what to do at the time of receiving the subpoena.
Subpoenas for evidence are many times delivered in person by the agents (special agents, investigators, or other representatives of authorities) who are working the investigation for which the subpoenaed records are sought. The visits may occur at your home, typically first thing in the morning, or at your place of business. The visits are almost always unscheduled, and a surprise. The agents may also seek to question you or members of your practice or office at the time of delivering the subpoena, particularly about your operations, billing practices and organizational structure and areas of responsibility.
As we pointed out in our previous article, a subpoena for evidence does not require you to immediately turn over records, explain records or submit to questioning. It is not a search warrant that allows agents to rummage through your home or place of business, effectively shutting down your operations for the day. If you receive a subpoena, receive it professionally and politely and simply ask for a business card from the agents and inform them that your attorney will be in touch. Resist the natural inclination to ask, “What is this about?”, and do not review the subpoena with the agents or engage in other conversation. Do not turn over documents or any evidence before consulting with legal counsel. It is important that you have the presence of mind to refrain from conversation and to immediately contact an attorney.
So, if it simply a matter of turning over requested business records, why all the caution? First, the subpoena needs to be assessed by legal counsel and you to determine its validity (legal authority), scope, breadth and due date for the response (production of evidence). What exactly is requested? Digital or hard copies, or both? How extensive? What resources will you have to devote to this project? What impact will it have on your practice or business? Is the due date reasonable? In short, is the required response reasonable, or does it severely impact and hamper your operations as you divert resources to concentrate solely on producing the response?
Legal action to oppose the subpoena can be brought in the form of a motion to quash if the subpoena is defective or onerous (overbroad, not reasonably related to the investigation, unreasonable timeframe to respond). In such a case legal counsel will be able to contact the agency that issued the subpoena to seek a more reasonable timeline and reduced scope of records to be produced. Many times, a “rolling production” can be negotiated, which is an incremental production of records that adheres to periodic due dates over an extended timeline. If negotiations fail, then a legal challenge to the subpoena may be in order.
In addition to the nature of the records requested, the agency requesting the records and the legal authority cited in the subpoena, counsel may be able to better gauge what the subpoena is about in discussions with the agency that issued the subpoena. Is this a criminal, civil or administrative investigation or a combination? Are you just a witness in a case who has records that may be relevant and useful in the investigation? Or are you a target in the investigation where the government is convinced that you did something wrong? Or are you in a middle area (subject) where the government feels that you have records that may aid its investigation but at the stage of the investigation it cannot rule out criminal exposure or wrongdoing on your part? To repeat, it is critically important that you engage counsel immediately and that counsel reach out to the issuing agency as soon as possible.
A couple of things about subpoenas for evidence that you must realize. Although they do not require you to create documents, but only produce responsive documents that are within your custody and control, sometimes it may be in your best interest to make a spreadsheet that basically summarizes voluminous data or documents. Also, generally there is no 5th Amendment privilege (right against self-incrimination) in business records, though there can be narrow exceptions to this rule. Other legal privileges such as attorney-client privilege may apply to the records that are requested. These are all issues that need to be discussed with legal counsel before turning over any records in response to a subpoena duces tecum.
Another note of caution – where a regulatory agency claims an immediate right to inspect records, which is a different issue than a subpoena response, immediately at that time contact an attorney and have the attorney speak to those who seek to inspect about the authority to inspect and the scope and timing of same. An inspection is also not a search warrant, and even where a regulatory agency has a right to inspect, that right does not equal the right to disrupt or shut down the practice or business.
In our next and final article in this series, we will discuss how a response (production) should be made, including the legal privileges that may apply to evidence that would allow for a declination or refusal to turn over privileged documents.
How Frier Levitt Can Help
Responding to Government or regulatory subpoenas is not a simple thing and must not be taken lightly. They can be a legal minefield depending on the type of subpoena and scope of inquiry or investigation. Although many times there may be no grounds in terms of opposing them, there is a lot that can be done in making them reasonable and not going beyond their stated purpose, and in enhancing legal protection of the client. With that in mind Frier Levitt stands ready to assist healthcare providers and pharmacies regarding the service of a government or regulatory subpoena upon your practice, office, or business and the appropriate response. Our team includes former Federal and State prosecutors and longstanding health care and life sciences defense attorneys who are experienced in all aspects of dealing with subpoenas and the investigations in which subpoenas are utilized. Contact us today for further information on our White Collar Defense and Government Investigations Practice.