An article in the New York Law Journal today analyzes the difficulty faced by corporations having countless bytes of electronically stored information when they are served with subpoenas in a federal criminal investigation. In addition to a need for caution in disclosing information so as not to waive any privileges, companies can face staggering costs and consumption of resources in attempting to comply with government demands for information. The authors also note the risk that targeted searches for information might be alleged to be insufficient by a prosecutor or regulator after the fact, creating a risk of additional demands for information or, at worst, charges of obstruction of justice. There are currently no Department of Justice guidelines for requesting electronically-stored information.
The article points out the potential for negotiating with the government regarding the scope of the subpoena and the actions to be taken in compliance. The authors recognize that prosecutors may often be reluctant to narrow the scope of a subpoena out of a concern that doing so may reveal information about its investigation. A corporation may also not want to reveal its methods for responding to a subpoena, considering it to be confidential attorney work-product.
The authors note that Federal Criminal Rule 17(c) sets forth some limitations on the government’s power to subpoena. A subpoena must be reasonable, including in the scope of the requests and the burden on the party responding to the subpoena. The article indicates that an objection to the overbreadth of a subpoena’s requests for information may be used to negotiate a narrower scope to the subpoena or the manner in which the subpoena will be complied with. The authors cite the Supreme Court’s decision in Hale v. Henkel, in which the Court held that subpoena requests must be particularized, as a basis to argue that subpoena requests for electronic information are not sufficiently particularized enough to allow the recipient to identify responsive documents throught the use of targeted search terms or other methods.
The authors further note recent decisions by courts which indicates that courts may soon impose such a requirement that the government negotiate with targets of subpoenas over the scope and manner of compliance. They advocate meet and confer sessions between investigators and recipients of subpoenas, or possible meetings overseen by a magistrate judge or a special master approved by the government, similar to civil litigation, as a step before filing a motion to quash. Involvement of a magistrate or special master would also provide the added benefit allowing a subpoena recipient to submit information in camera.