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Making the Best of a Bad Situation: Grand Jury Representations

By Charles B. Sklarsky

Receiving a grand jury subpoena is never a good thing for your client. This is true whether you represent an individual or an entity. A client who tells the truth (or, at least, intends to) isn’t safe because the prosecutor, not you or your client, will determine the truth. And even though an entity can’t testify, it certainly can intentionally or inadvertently destroy documents that should have been preserved, fail to produce documents that are responsive, or produce documents that should have been withheld, such as those protected by the attorney-client privilege or attorney work-product doctrine. This is particularly true when the subpoena calls for electronically stored information, which is now almost always the case.

What follows are some practical considerations to be taken into account when a white-collar client faces a grand jury subpoena. While these considerations will not guarantee safe passage either individually or collectively, they may help your client avoid disaster.

Know Your Prosecutor. Can you rely on what the prosecutor tells you? Is the prosecutor lazy or overworked? Is the prosecutor experienced and capable? Will the prosecutor focus on the right issues and recognize important facts? Don’t hesitate to ask around about the prosecutor, particularly if the grand jury is in a district in which you don’t normally practice. If client resources permit, hiring local counsel who is familiar with the prosecutor and the prosecutor’s office and practices in grand jury investigations is a good idea.

Ask the Prosecutor What the Case Is About. Some will tell you; some won’t. Sometimes, I try to appeal to the prosecutor’s sense of fairness. My pitch is that I can’t adequately advise my client if I don’t know anything about the case. At other times, I tell the prosecutor that my client will have to assert his Fifth Amendment privileges if I’m not given information about the case. And sometimes, you might let the prosecutor know that you’ll have to seek the information from his or her supervisor. There’s no one right approach here. The only thing that is clear is that you can’t give appropriate advice to your client in a vacuum.

Know Your Client’s Status. Clients can fall into one of three categories: witness, subject, or target. Being identified as a witness is good; a subject, not so good; and a target, even worse. In the minds of most prosecutors, a witness is someone who has done nothing wrong but may have relevant testimony; a subject is someone who might have done something wrong, but the prosecutor isn’t sure; and a target is someone who, in the prosecutor’s view, definitely has committed a crime and is the focus of the investigation.

Because prosecutors do not always use these designations uniformly, and because some prosecutors will misrepresent your client’s status, you have to conduct your own investigation of your client’s potential exposure. Thoroughly interviewing your client is a good start, but it’s hardly enough. You will want to speak with other defense lawyers involved in the investigation, gather key documents, and interview witnesses. In this day and age, emails inevitably will be key pieces of evidence that could exonerate or inculpate your client. At a minimum, be sure to review emails that your client wrote or received concerning the subject matter of the investigation. Until you have done this, you cannot really make an informed judgment about where your client fits in the investigation.

Seek Protections for Your Client. Even if the prosecutor has designated your client as a target, if the prosecutor really wants to hear your client’s testimony, he or she may be willing to seek immunity for your client. Certainly, there’s never any harm in asking.

In cases in which the prosecutor has decided that charges will be filed and in which the client is testifying before the grand jury as a cooperator seeking favorable official action, defense counsel commonly will want a formal plea agreement, or a letter agreement committing the government to a particular form of plea agreement, before the client delivers “the goods” by actually testifying before the grand jury.

Prepare Your Client for Testimony. An experienced prosecutor will want to work with you and your client so that the grand jury testimony is consistent with your client’s proffer and is without surprises or unexpected answers. When I was a prosecutor, for important grand jury witnesses, I often prepared a written statement that the witness could read to the grand jury and that served as the witness’s grand jury testimony. I would go over the statement with the witness and his or her counsel before the witness testified to ensure that the statement was accurate and that the witness was comfortable with it. As a white-collar defense attorney, I encourage prosecutors to use prepared statements before the grand jury. Some prosecutors use this technique at least with important witnesses, while others will not. Nonetheless, it is a suggestion worth making because it benefits both the prosecution and your client.

Whether or not the prosecutor uses a prepared statement, you should make sure your client understands that he or she can consult with you even after the grand jury session has begun. In federal grand juries, counsel for grand jury witnesses cannot be in the grand jury room when their clients testify. But you should be just outside the grand jury room so that if anything unexpected or troublesome occurs, your client can ask to be excused and consult with you before answering further. Even where a prepared statement is used, grand jurors are permitted to ask questions of witnesses, and they sometimes do. These questions must be answered just as if the prosecutor had asked them. An experienced prosecutor, however, will politely cut off inappropriate questions from grand jurors. In any event, your client needs to be prepared for the unexpected by being ready to consult with you.

In some states, defense counsel are allowed to be present in the grand jury during their clients’ testimony. You should make sure you know whether you have a right to be present in the grand jury in your state and what, if anything, you may do in the grand jury room other than be present.

Prepare Your Client for Document Production. Preparation for document production should begin long before receipt of a grand jury subpoena by making sure that the entity you represent has a clear and comprehensive written document retention policy and that it follows that policy.

Upon receipt of a grand jury subpoena or upon having notice that a grand jury investigation is under way, your client should suspend its normal document destruction policy and give written instructions to all employees who might have responsive documents that such documents must be preserved and must not be destroyed. The memorandum should state that a grand jury subpoena has been received, describe the documents that the subpoena seeks, provide instructions concerning collection of the documents, and identify the person to whom the recipients of the memorandum may direct questions about the subpoena and which documents are responsive. In addition, it is advisable to meet with all custodians of relevant documents, to reinforce and explain the directions in the memorandum. The memorandum also should warn that destruction of or failure to produce responsive documents can be a criminal offense. Don’t forget to include as recipients of the memorandum your client’s information technology department, secretaries and administrative assistants because these individuals will often be responsible for maintaining documents.

When there is an ongoing criminal investigation, you might also include in the memorandum a brief discussion of what an employee should do if an investigator shows up at his or her home seeking an interview. The memorandum should advise employees that they are free to speak to the investigator but are not obligated to do so; that the investigator may not compel them to submit to an interview; that they may consult with counsel before speaking with the investigator; and that the company at its expense may be able to provide counsel for employees. Whether or not an employee submits to an interview, the memorandum should direct employees to report to in-house counsel that an investigator has sought an interview, and the memorandum should instruct employees to get the name of the agent and the investigative agency he or she represents.

It is not uncommon for a client to complain that compliance with a subpoena is unduly burdensome or that the subpoena calls for production of documents that couldn’t possibly be relevant. While it is true that a grand jury subpoena can be quashed on grounds of undue burden, very few burden challenges have succeeded. And while in theory a grand jury needs probable cause to return an indictment, it does not need probable cause to subpoena documents. In short, it will be an unusual case in which a court will sustain a challenge to a grand jury subpoena on burden or relevance grounds. Your best bet for narrowing the scope of the subpoena will almost always be negotiating with the prosecutor.

Finally, your client should designate someone, usually an in-house lawyer, to oversee and be responsible for document collection. A written record should be maintained of the documents each custodian has produced and where each custodian found the documents (e.g., file cabinet, desk drawer, storage area). It is a good practice to have each employee whom your client believes has responsive documents sign a certificate acknowledging that he or she searched for and produced all responsive documents in his or her possession. Even employees who say they have no responsive documents should sign a certification. If the document custodian is the target of the investigation or if there are other reasons to believe the document custodian may not conduct a comprehensive search, counsel or some other responsible party should conduct the search.

After the documents have been produced and your client has testified in the grand jury, you are almost done. You should continue to monitor the investigation by staying in touch with lawyers for other grand jury witnesses and with the prosecutor as appropriate. As you can see from the precautions I’ve outlined above, dealing with grand jury subpoenas is not for amateurs. Mishandling the response to a grand jury subpoena can be disastrous for your client, while proper handling may get you a polite word of thanks from the prosecutor but nothing more. There are no rewards or bonus points for doing it right. Thus, the foremost rule of thumb: Avoid grand jury subpoenas whenever possible.

Keywords: litigation, trial tips, grand jury representaion, subpoena

This article was excerpted from a longer one that appeared in Litigation, Volume 37, Number 3, Spring 2011.


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