How Federal Subpoenas Allow Agencies to Retain Privileged Information
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How Federal Agencies Use Subpoenas to Get Information
Subpoenas are powerful tools that federal agencies can use to get information from people and companies during investigations. But when they ask for confidential or protected information, it raises some big concerns. Let’s look at how these subpoenas work and what you can do if you get one.
What Exactly Are Subpoenas?
A subpoena is basically a legal demand for information. Federal agencies issue them when they’re investigating something like securities fraud or antitrust violations.So say the SEC thinks a company misled investors. Or the FTC is looking into shady business practices. They can subpoena documents, testimony, or demand that someone appear before a grand jury.The agencies get this power from procedural rules that apply to civil court cases and criminal prosecutions. Some of the heavy users are the SEC, FTC, DOJ Antitrust Division, and IRS.
The Broad Reach of Subpoenas
With subpoenas, agencies can force companies, banks, and people to hand over all kinds of information relevant to an investigation. This includes:
- Emails between employees
- Financial statements
- Internal memos
- Phone call records
- Medical information
- Tax returns
You can see how this starts to get dicey. The government has a lot of power to dig into private and confidential matters.
When Privileged Information Is at Risk
Some of the records requested by subpoenas might be protected or privileged:
- Attorney-client communications: Conversations between lawyers and clients are confidential. But that doesn’t always keep them private from the government.
- Trade secrets: Secret formulas and methods have protections, but agencies still push to get them.
- Medical records: These are private but could end up in the government’s hands.
- Tax returns: The IRS has some procedures to protect tax return confidentiality, but other agencies can still subpoena returns.
- Journalist’s sources: Reporters have some privilege not to reveal confidential sources, but the protections are limited.
Handing this information over to the government can really harm people and businesses. It can damage reputations, reveal private matters, and expose legal strategies.
Fighting Back Against Subpoenas
If you get hit with a subpoena, you’re not totally helpless. Here are some ways you can try to limit the damage:
- File a motion to quash: Ask a court to cancel the subpoena because it’s too vague or broad. This isn’t easy but it’s possible in some cases.
- Seek a protective order: Ask a court to restrict access to sensitive documents or block certain depositions. This might help limit disclosure.
- Provide a privilege log: Give the agency a detailed list of documents you’re not producing due to privilege. But be ready to defend the claims.
- Claim privileges: Assert all privileges like attorney-client privilege and trade secrets protections to try to withhold documents. Just understand that claiming privilege doesn’t guarantee protection.
What If Privileged Documents Are Disclosed?
If you accidentally hand over privileged information, you’re supposed to get it back. The rules say the agency has to return any inadvertently disclosed privileged documents without using them.But it’s not crystal clear that government agencies have to do this. Some court rulings have said agencies can use privileged documents just like any other evidence.So if you do mistakenly disclose privileged information, you’ll have to fight aggressively in court to compel the agency to return the documents untouched. Relying on the rules alone may not be enough.
Conclusion
Federal agencies have broad power to obtain sensitive and confidential information using subpoenas. There are some protections for privileged documents, but they are limited. If you receive a subpoena, get experienced legal help to shield private information as much as possible. Push back against overbroad requests. And if you do make a mistake and disclose privileged documents, be prepared for a legal fight to get them back.