Receiving a document subpoena from the DOJ, the SEC, or any other US regulatory authority is a stressful and unpleasant situation.
Things may seem even more stressful and complicated if you are a foreign national or company not residing or not incorporated in the United States, due to the need to face powerful authorities in an unfamiliar country.
Although each subpoena is different, it is a good idea to know in advance how best to respond to one. A quick response is always a good starting point for a “relationship” with a US agency or regulatory authority, but you should not attempt to do so without legal guidance and advice.
Initial Stages
- First of all, contact an experienced white-collar lawyer with international experience. This steps is essential for everyone, but is even more critical if you are a non-US national or company, as further considerations may become relevant. Many times, what prompted the subpoena is not entirely clear. Your lawyer will be able to help you understand why the regulatory authority has served you with the subpoena.
- A quick response is key. US authorities usually do not allow much time to respond to a subpoena. The sooner you forward it to an experienced lawyer, the sooner your lawyer can begin handling the matter and, in many instances, even obtain an extension for your response.
- Consider contacting the prosecutor or regulatory authority that issued the subpoena. However, if you are a non-US national or company, there are many considerations you must take into account before doing so, so as not to risk infringement of rights or confidentiality.
Contacting the Regulatory Authority
Having your lawyer contact the regulatory authority that issued the document subpoena can be very beneficial to you.
- It is a good idea to begin the process with friendly and cooperative introductions between you (the suspect), your lawyer, and the regulatory authority. Creating an impression of cooperation is often what tips the scales one way or the other in terms of the intensity of enforcement (even if the relationship devolves later, as it sometimes does).
- Your lawyer will try to determine the purpose of the document subpoena, what exactly is under investigation, and what motivated the regulatory authority to issue the document subpoena to you.
- The most important thing your lawyer can learn during the conversation is whether you are a target, a subject, or a witness in the investigation. The answer to this question will inform the process going forward.
- If you are a foreign national or company, your lawyer will then be able to advise you about the degree of risk involved in traveling abroad, especially to the United States, or about the probability of being served with an extradition request and about the pros and cons of cooperating voluntarily with the agency that issued the document subpoena, as opposed to waiting for a compelling order.
- You must consider numerous other aspects if you are a foreign corporation or a foreign national. One such example is data privacy laws, which vary dramatically between jurisdictions and dictate what documents to disclose.
- Your lawyer will try to narrow or focus the scope of the document subpoena, which is usually very broad or general. Attempting to narrow and focus the subpoena in terms of the time periods involved, the number of document custodians included in the subpoena, the relevant subjects, etc., can save you time and money and provide additional insights into the priorities of the agency that issued the subpoena.
In conclusion, such an introductory conversation affords your lawyer an excellent opportunity to glean valuable information about the nature of the suspicions and about the issuing agency’s perception of your status in the investigation. It also enables your counsel to gain valuable time to build a defense strategy. Obtaining these advantages can dramatically improve your ability to defend yourself.
Additional Aspects
There are several additional aspects you must address immediately upon receiving a document subpoena from any authority.
Retention of Documents and Evidence
It is critically important the recipient of the subpoena take measures to ensure no material relevant to the subpoena is destroyed, either personally or by the company under investigation. (Your lawyer can assist by issuing instructions to the IT department.) Deletions of documents can expose you to additional criminal liability, such as suspicions of obstruction of investigative proceedings.
Document Collection and Ascertaining Whether an Internal Investigation is Warranted
The collection of documents relevant to the subpoena and the information that will become evident after their examination will help you reach an informed decision about whether the matter warrants an internal investigation. In other words, after examining the relevant documents, your lawyer will be able to advise you about what issues arose in them that may be the source of the suspicions, and about the identities of the parties corresponding in these documents or that are involved in actions that led to their creation. It is also important to keep in mind that authorities usually summon custodians of relevant documents for questioning during an investigation.
An internal investigation can help you identify the source of the actions that led the agency to open an investigation. It can also help you to formulate recommendations on how to rectify and improve conduct. An internal investigation is an essential tool for reaching an informed decision about disclosing information to the investigating agency and assisting it in its investigation, which can result in leniency in the intensity of the enforcement.
Confidentiality and Privileges
Since conducting an internal investigation and its findings are an issue that involves confidentiality and privileges, with a set of rules and laws that differ significantly between jurisdictions (i.e., between different countries), it is critical that you conduct the internal investigation only after consulting with a lawyer specializing in the jurisdictions where the company operates and where the agency that issued the subpoena is located.
Of course, since the above measures may not be relevant in every instance, you should carefully consider every step before taking it. However, the main thing is to understand that the shortest time frame given for formulating your initial response to a document subpoena from a US authority is a one-time window of opportunity. Your first response is critical and may affect the course of the entire proceeding. There is no way back from it.
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Partner Hadar Israeli of Barnea Jaffa Lande’s white-collar team is at your service to advise on this matter, as well as on other white-collar and international litigation issues.