We recently wrote about the government’s use of Civil Investigative Demands and subpoenas that can result in criminal charges. This article will address a specific subpoena, called “duces tecum,” which the Supreme Court recently elaborated on its history in the U.S. legal system in Carpenter v. United States. Duces tecum subpoenas may be used in both criminal and civil cases and are often used during investigations of white-collar crimes, including fraud. While a subpoena generally calls upon the recipient to testify, a duces tecum subpoena compels the recipient to produce papers, books, and other forms of physical evidence. Federal authorities, both criminal prosecutors (DOJ and U.S. Attorneys) and civil enforcement regulators (SEC, FTC, Inspector Generals) use duces tecum subpoenas to build cases. Just as the recipient of a subpoena to testify should not blindly submit to authorities to answer questions under oath, recipients of duces tecum subpoenas should not rush to hand federal authorities papers, books, and other forms of physical evidence without first consulting with counsel experienced in criminal and civil investigations. The following are just some considerations.
First, it is imperative to determine whether the subpoena was properly directed to the recipient. We recently reviewed a subpoena duces tecum addressed to a records custodian of a company that had not existed for years. Regardless of whether the recipient possessed the documents, the recipient may not have been the appropriate person to serve. Failing to object to the subpoena being improperly served would waive the objection if the responsive papers, books, and other forms of physical evidence produced in response to the subpoena were later used to prosecute the recipient.
Second, federal authorities often draft impermissibly broad subpoenas, making it impossible to determine the universe of papers, books, and other forms of physical evidence sought. Overly broad subpoenas can be subject to objections based on the Fourth Amendment. Without an agreement to narrow the breadth of a subpoena, the recipient risks future obstruction of justice charges for failing to provide something the subpoena sought. For example, the government may interpret the duces tecum subpoena as covering a document the recipient failed to produce. After realizing the recipient did not produce the documents, the government may seek obstruction of justice charges.
Third, the duces tecum subpoena may seek privileged items. It is important to review the items requested and determine whether a privilege applies. The recipient simply cannot decide to withhold privileged documents. A privilege log must be created. A privilege log must be carefully crafted to ensure privileges are not waived. It is also important to craft a privilege log that can be defended if called upon by the Court to do so.
These are just a few examples of considerations that must be analyzed when responding to a duces tecum subpoena. Skilled defense counsel will also consider the act-of-production doctrine, the foregone conclusion doctrine, self-incrimination issues, and whether to seek immunity for production of the papers, books, and other forms of physical evidence. These are just some examples of more complicated issues skilled counsel will consider. Too often we have seen recipients respond to duces tecum subpoenas without assistance or with help from the wrong lawyer. Federal authorities use the responses to duces tecum subpoenas as one step in building a larger investigation against the recipient.
It is imperative to retain counsel experienced in criminal and civil fraud investigations to navigate the perils you face when you receive duces tecum subpoenas from government agencies. If you believe you are under federal or state investigation, or if you are an attorney with a client under federal or state investigation, contact the Law Offices of Horwitz & Citro, P.A. immediately. Call (407) 901-5852 to request a free initial consultation with an experienced criminal defense lawyer.