Practice Areas
White Collar

Grand Jury Subpoenas

ON THIS PAGE

A federal grand jury subpoena commands attendance to testify, the production of documents, or both, and receiving one does not tell you whether the company is a witness, a subject or a target. Fed. R. Crim. P. 17 sets out what the subpoena must contain. Rule 6(e) governs grand jury secrecy, and it binds the government rather than the recipient, which is why companies usually learn less than they expect.

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.

What the rule requires

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 will be paid in the same manner as those paid for witnesses the government subpoenas. (c) Producing Documents and Objects. (1) In General. A subpoena may order the witness to produce any books, papers, d

Fed. R. Crim. P. 17

What secrecy actually covers

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 operator of a recording device; (v) a person who transcribes recorded testimony; (vi) an attorney for

Fed. R. Crim. P. 6(e)

The asymmetry matters: the recipient of a subpoena is not gagged by Rule 6(e), but neither is the government obliged to explain the investigation.

Responding

Preservation first, scope second, production third. 18 U.S.C. § 1519 makes destruction of records to impede a federal matter a separate offense carrying up to 20 years, and it applies in contemplation of a matter. Scope is frequently negotiable; that conversation is had by counsel, not by the records department.

What is the exposure created by the response to a grand jury subpoena?

Companies get into far more trouble for what they do after a grand jury subpoena arrives than for whatever prompted it. The obligation to stop routine deletion attaches immediately, and each provision below is charged independently of the underlying matter.

Provision Official heading Maximum term
18 U.S.C. § 1519 Destruction, alteration, or falsification of records in Federal investigations 20 years
18 U.S.C. § 1512 Tampering with a witness, victim, or an informant Up to 20 years, depending on the conduct charged
18 U.S.C. § 1001 Statements or entries generally 5 years (8 if terrorism-related)
Sources: 18 U.S.C. §§ 1001, 1512, 1519, as published by the Cornell Legal Information Institute. Penalty provisions are summarized — read the sections.

Frequently asked questions

No. Witnesses, subjects and targets all receive subpoenas.

Secrecy binds the government, not the recipient of the subpoena. But what is said internally has its own consequences, so take advice first. See Rule 6(e).

The scope can frequently be narrowed. That is a conversation for counsel to have with the prosecutor.

Routine deletion has to be suspended straight away. The obstruction provision carries up to 20 years and reaches conduct in contemplation of a federal matter. See § 1519.

Any witness the subpoena names. Under Fed. R. Crim. P. 17 the clerk issues a blank subpoena, signed and sealed, to the party requesting it; that party fills in the blanks before service, and the subpoena commands the witness to attend and testify at the time and place it specifies.

Because the response creates offenses that stand on their own. 18 U.S.C. § 1519 carries up to 20 years for altering or concealing a record to impede a federal investigation, and 18 U.S.C. § 1001 carries up to five years for a materially false statement. Neither depends on the original conduct being unlawful.

Preservation has to happen immediately, on the day the subpoena is received. Routine deletion must be suspended because the obstruction provision reaches conduct in contemplation of a federal matter. The return date printed on the subpoena is a separate deadline, and it is frequently negotiable. See 18 U.S.C. § 1519.

It sits before the United States District Court for the District of Columbia, a single judicial district with court held at Washington. The grand jury operates under that court’s supervision, and any motion to quash or modify a subpoena is made there. See 28 U.S.C. § 88 and Fed. R. Crim. P. 17(c)(2).

By suspending routine deletion, naming a single point of contact, mapping the custodians and systems the demand actually reaches, and having counsel engage the prosecutor on scope and timing before anything is produced.

The court can cut a subpoena down if complying with it would be unreasonable or oppressive, on a motion made promptly. In practice the scope and the production format are more often settled with the prosecutor than decided on a motion. See Fed. R. Crim. P. 17(c)(2).

Sources and legal authorities

General information about federal law, not legal advice, and not a prediction of any outcome. Federal criminal exposure turns on facts this page cannot assess. If your company has been contacted by investigators or has received a subpoena, take advice before gathering documents or interviewing staff.

Related: Government Subpoenas & Investigative Demands · Search Warrants · White-Collar Defense · Internal Investigations. Call (301) 901-3109 or use the contact page.

Contact Info
5425 Wisconsin Ave Ste 600
Chevy Chase, MD 20815
Email Us
Discuss your matter

This field is for validation purposes and should be left unchanged.
Consent(Required)
5.0 out of 5 on Google · 4 reviews · Read the reviews on Google