A subpoena duces tecum seeks the production of documents or other tangible things. Confer with the prosecutor to narrow the scope of the subpoena. Through this process it may be possible to identify what the prosecutor is really looking for with the subpoena duces tecum. Once the scope is defined, prepare a management search letter. Upon receipt of a grand jury subpoena, it is often useful to distribute a memorandum from a senior corporate officer (usually the General Counsel) directing relevant employees to search for responsive documents, designating a custodian for responsive records, clearly stating that no records conceivably responsive to the subpoena, or related in any way to the matter under investigation should be destroyed, even pursuant to a standard record retention policy, without the specific advice of counsel. Compliance with the subpoena should be strictly supervised and documented. The custodian of records should have no involvement in the matter under investigation for two reasons: integrity of production and testimony about compliance with the subpoena duces tecum. All documents must be reviewed to determine whether they are responsive to the subpoena duces tecum and, if so, whether they are subject to an attorney-client privilege claim, a work-product exemption or some other privilege or exemption. No documents should be delivered to the grand jury without first being copied and numbered; in fact, you may be able to produce copies of documents but make sure the prosecutor confirms that copies are sufficient.
More later.
As always, feel free to call me or e-mail me with any questions at walter.james@jamespllc.com.
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