In the middle of an already hectic workday, a government agent shows up and serves your company with a subpoena.
Are you in trouble?
It is not uncommon for the government to serve a company with a subpoena duces tecum for documents, often as part of a broader investigation which may have little to do with your company. For example, if the government investigates Vendor A, from which you buy product, for tax fraud, it may want purchase orders/invoices between your company and Vendor A to help establish Vendor A’s underreported income.
Even if your company has done nothing wrong, you should not just hand over documents. You should immediately contact your attorney to guide you through very important steps.
First, ascertain which government entity issued the subpoena, because different rules and procedures can apply depending on state versus federal subpoenas.
Second, determine exactly what the subpoena commands your company produce. Does it require documents only, or must your company’s records custodian also give sworn testimony before a grand jury or in court?
Third, understand how the subpoena fits into the government’s broader investigation. Might the company or its employee(s) have potential legal liability?
If a company employee may have violated the law, even in the course of his or her duties, that employee may need a personal attorney. An experienced attorney, immediately reacting to a subpoena, can contact the government lawyer heading the investigation to discover any potential liability of the company or an employee.
Even if the company has no liability, additional issues may arise as to requested documents. For example, would requested documents implicate privileged or confidential information; reveal private information subject to the Health Insurance Portability and Accountability Act (“HIPAA”); or reveal trade secret or proprietary information?
An experienced attorney is critical to avoiding the potential pitfalls in responding to a government subpoena.