Article by Jack Gruenstein Esq*
As the economy struggles to recover its footing, and as new costly, programs are created, the focus of the government, whether federal, state or local, increasingly has been to pursue both criminal and regulatory investigations with the goals of rooting out fraud and abuse, and generating revenue. While the goal of rooting out fraud and abuse is admirable, the government, often assisted by whistleblowers with a financial interest in an underlying investigation, has tools in its arsenal that permit it to send people to jail, as well as to obtain restitution, treble damages, and substantial regulatory and criminal fines. Businesses and professionals are forced to operate in this brave new world of enforcement, and deal with the trauma of an unannounced search of a plant or office by a team of agents armed with a search warrant.
The most common way for the government to obtain information in a criminal or regulatory investigation is by the use of a subpoena for documents or testimony and/or interviews of those with relevant information. Of course, the less used, but exponentially more intrusive mechanism is to issue a search warrant.
IF YOUR BUSINESS OR AN INDIVIDUAL IS SERVED WITH A SUBPOENA
A subpoena issued for documents in a civil case may be familiar to many, but a grand jury subpoena is less so. While it may be appropriate in the civil case for a company to object to a document subpoena, or simply refuse to turn over what has been requested, such a response to a Grand Jury subpoena may be considered by a prosecutor to be an obstruction of justice. Likewise, a decision by a company or an individual, to dispose of documents, rather than turn them over to the Grand Jury or hide them, will be viewed in the same way.
The receipt of a Grand Jury subpoena, however, is not, by itself, an accusation by the government of wrongdoing. Rather, many times it may be that the recipient is simply a witness with information or documents needed by the government as part of an investigation of someone else. However, before anything is turned over, it is recommended that it be reviewed by counsel for responsiveness to the subpoena and to ferret out the contours of the government's investigation. This process helps the recipient of the subpoena to better understand how it fits into the investigation and may identify problem areas, such as poor internal controls, or inappropriate actions by employees, that impact the client's business.
Where the Grand Jury subpoena seeks electronically stored data...