If your company has received a federal grand jury subpoena, an administrative subpoena or a civil investigative demand, the single most urgent step is to stop any routine deletion of records — because destroying documents is a separate federal crime carrying up to 20 years. 18 U.S.C. § 1519 reaches anyone who knowingly alters, destroys, conceals or falsifies a record “with the intent to impede, obstruct, or influence” a federal investigation. Companies get into far more trouble for what they do after the subpoena than for whatever prompted it.
Waxman Litigation acts for companies and their boards. Seth B. Waxman spent 13 years as an Assistant United States Attorney in the District of Columbia, roughly eight of them on fraud and public corruption — so the response is built from the perspective of how these investigations are actually run.
Why preservation comes before everything else
Preservation comes first because 18 U.S.C. § 1519 reaches anyone who alters, destroys or conceals a record to impede a federal investigation, and carries up to 20 years.
Whoever knowingly alters, destroys, mutilates, conceals, covers up, falsifies, or makes a false entry in any record, document, or tangible object with the intent to impede, obstruct, or influence the investigation or proper administration of any matter within the jurisdiction of any department or agency of the United States or any case filed under title 11, or in relation to or contemplation of any such matter or case, shall be fined under this title, imprisoned not more than 20 years, or both.
18 U.S.C. § 1519 — Destruction, alteration, or falsification of records in Federal investigations
Note how broad it is: it applies to any matter “within the jurisdiction of any department or agency of the United States”, and it reaches conduct “in relation to or contemplation of” such a matter — that is, before an investigation is even formally under way. Automatic email deletion policies and routine document destruction schedules are the usual danger, not shredding.
The related obstruction exposure
Section 1512 adds exposure for corruptly persuading another person to withhold testimony or a document from an official proceeding, or to alter or destroy an object.
(b) Whoever knowingly uses intimidation, threatens, or corruptly persuades another person, or attempts to do so, or engages in misleading conduct toward another person, with intent to— (1) influence, delay, or prevent the testimony of any person in an official proceeding; (2) cause or induce any person to— (A) withhold testimony, or withhold a record, document, or other object, from an official proceeding; (B) alter, destroy, mutilate, or conceal an object with intent to impair the object’s integrity or availability for use in an official proceeding; (C) evade legal process summoning that person to appear as a witness, or to produce a record, document, or other object, in an official proceeding; or (D) be absent from an official proceeding to which such person has been summoned by legal process; or (3) hinder, delay, or prevent the communication to a law enforcement officer or judge of t
18 U.S.C. § 1512(b) — Tampering with a witness, victim, or an informant
Telling employees what to say — or what not to say — is the way well-intentioned managers create a second problem. Interviews should be conducted properly, which is part of what an internal investigation is for.
| Provision | Conduct reached | Maximum term |
|---|---|---|
| 18 U.S.C. § 1519 | Altering, destroying, concealing or falsifying records with intent to impede a federal investigation | 20 years |
| 18 U.S.C. § 1512(b) | Corruptly persuading another person to withhold testimony or records from an official proceeding | See the section |
| 18 U.S.C. § 1505 | Corruptly influencing, obstructing or impeding a pending proceeding before a department or agency | 5 years (8 if terrorism-related) |
What is a grand jury subpoena?
A grand jury subpoena must name the court and the proceeding, carry the court’s seal, and command the witness to attend and testify at a stated time and place.
A subpoena must state the court’s name and the title of the proceeding, include the seal of the court, and command the witness to attend and testify at the time and place the subpoena specifies. The clerk must issue a blank subpoena—signed and sealed—to the party requesting it, and that party must fill in the blanks before the subpoena is served. (b) Defendant Unable to Pay. Upon a defendant’s ex parte application, the court must order that a subpoena be issued for a named witness if the defendant shows an inability to pay the witness’s fees and the necessity of the witness’s presence for an adequate defense. If the court orders a subpoena to be issued, the process costs and witness fees wil
Fed. R. Crim. P. 17 — Subpoena
A subpoena may command testimony, the production of documents, or both. Receiving one does not mean the company is a target — witnesses, subjects and targets all receive subpoenas, and establishing which the company is tends to be an early priority.
What are you allowed to be told?
Grand jury proceedings must be recorded except during deliberations and voting, and no obligation of secrecy may be imposed on a person except in accordance with Rule 6(e)(2)(B).
Recording and Disclosing the Proceedings. (1) Recording the Proceedings. Except while the grand jury is deliberating or voting, all proceedings must be recorded by a court reporter or by a suitable recording device. But the validity of a prosecution is not affected by the unintentional failure to make a recording. Unless the court orders otherwise, an attorney for the government will retain control of the recording, the reporter’s notes, and any transcript prepared from those notes. (2) Secrecy. (A) No obligation of secrecy may be imposed on any person except in accordance with Rule 6(e)(2)(B) . (B) Unless these rules provide otherwise, the following persons must not disclose a matter occurring before the grand jury: (i) a grand juror; (ii) an interpreter; (iii) a court reporter; (iv) an o
Fed. R. Crim. P. 6(e) — Recording and Disclosing the Proceedings
Grand jury secrecy binds the government, not the recipient of a subpoena. That asymmetry is why a company often knows less about the investigation than it expects, and why what can be learned usually comes from the subpoena’s own terms and from the questions asked.
Company and individuals may need separate counsel
The company’s interests and an individual employee’s interests can diverge quickly, and the point at which they do is not always obvious at the outset. Recognizing it early protects both — and protects the integrity of any internal review. This is a question to raise at the first meeting rather than after interviews have begun.
Not every demand is a grand jury subpoena
The route matters, because the issuing authority, the scope and the response options differ: grand jury subpoenas, federal administrative subpoenas, and state and local law enforcement subpoenas. Where a search warrant is executed instead, the situation is different again — see search warrants.
Frequently asked questions
Does receiving a subpoena mean the company is a target?
No. Witnesses, subjects and targets all receive subpoenas. Establishing which the company is tends to be an early priority.
Can we keep deleting emails on our normal schedule?
No — that is the most common way a document problem becomes a criminal one. 18 U.S.C. § 1519 reaches destruction of records with intent to impede a federal matter, including in contemplation of one, and carries up to 20 years.
Can we tell employees not to speak to investigators?
That is dangerous territory. 18 U.S.C. § 1512(b) reaches corruptly persuading another person to withhold testimony or records from an official proceeding. Employees can be told they may seek their own counsel; instructing them what to say is a different matter.
Will we be told what the investigation is about?
Often not much. Grand jury secrecy under Fed. R. Crim. P. 6(e) binds the government, not the recipient, so what can be learned usually comes from the subpoena’s terms and the questions asked.
Do the company and its employees need different lawyers?
Sometimes, and the divergence can appear early. It is a question to raise at the first meeting rather than after interviews have started.
Whose records can a subpoena actually reach?
Whatever the recipient holds. Federal Rule of Criminal Procedure 17(c)(1) provides that a subpoena may order the witness to produce any books, papers, documents, data or other objects it designates — which is why the first task is mapping what the company possesses, including on personal devices and in third-party systems.
When must an objection to a subpoena be raised?
Promptly. Federal Rule of Criminal Procedure 17(c)(2) allows the court to quash or modify a subpoena “on motion made promptly” if compliance would be unreasonable or oppressive — so an objection developed over weeks of internal discussion can be too late even where it is sound.
Where is a dispute about the subpoena decided?
In the court that issued it, rather than with the prosecutor who served it. Rule 17(c)(2) places the power to quash or modify with the court, so a negotiation with the government about scope runs in parallel with, and does not replace, that route.
How is a production made without conceding more than necessary?
By agreeing scope, format and a privilege protocol in writing before anything is handed over, and by keeping a record of what was searched and what was withheld. Where agreement is not reached, Rule 17(c)(2) is the mechanism for putting the dispute to the court.
What penalties attach to mishandling the response?
Serious ones, independent of the investigation itself. 18 U.S.C. § 1519 carries up to 20 years for knowingly altering, destroying or concealing a record with intent to impede a federal matter, and 18 U.S.C. § 1505 reaches obstruction of a pending proceeding before a department or agency.
Sources and legal authorities
General information about federal law, not legal advice, and not a substitute for advice on your own facts. If your company has received a subpoena, the response should be planned with counsel before documents are gathered or employees are interviewed.
Related: White-Collar Defense & Government Enforcement · Internal Investigations · Business Litigation. Call (301) 901-3109 or use the contact page.