You Just Received A Federal Grand Jury Subpoena In New Jersey: Now What?

Receiving a federal grand jury subpoena is not something most businesses or individuals anticipate. While it can be concerning, a federal grand jury subpoena does not necessarily mean that you are being accused of wrongdoing. It does, however, mean that a federal criminal investigation is underway and that federal prosecutors believe you may possess information relevant to that investigation.

How you respond in the hours and days after receiving a subpoena can have significant consequences. For that reason, the first step should not be gathering documents or contacting investigators. It should be obtaining experienced legal counsel.

Understanding What a Federal Grand Jury Subpoena Means

Under the Fifth Amendment to the U.S. Constitution, “[n]o person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury.” This has been interpreted to mean that federal prosecutors must use the grand jury to bring all federal felony charges, unless the defendant affirmatively waives that right.

Unlike a regular criminal jury, a grand jury does not determine guilt or innocence, but only whether there is probable cause to believe that the person being investigated committed a crime. To make this determination, the grand jury will hear evidence presented by federal prosecutors that a crime has been committed, and it can also request documents via a grand jury subpoena. If the grand jury finds probable cause to exist against a person suspected of having committed the crime, then it will return an indictment. An indictment is an official written document setting forth the criminal charges.

In New Jersey, federal grand jury investigations are typically conducted by the United States Attorney’s Office for the District of New Jersey, often in conjunction with agencies such as the Federal Bureau of Investigation (FBI), Internal Revenue Service (IRS) Criminal Investigation Division, Drug Enforcement Agency (DEA), Department of Homeland Security, or other federal law enforcement entities.

Types of Grand Jury Subpoenas

Much like in traditional business litigation,the grand jury may issue subpoenas for witness testimony and the production of documents. A subpoena generally falls into one of two categories:

• Subpoena Duces Tecum (Document Subpoena): Requires the production of documents, electronically stored information, records, emails, financial information, or other materials.
• Subpoena Ad Testificandum (Testimony Subpoena): Requires an individual to appear before the grand jury and provide testimony under oath.

Do Not Assume You Are “Just a Witness”

Federal prosecutors often categorize individuals as witnesses, subjects, or targets of an investigation. However, those designations are not always disclosed to subpoena recipients. Most importantly, an individual’s status can change as an investigation progresses.

The fact that you have received a subpoena does not automatically make you a target. At the same time, it would be unwise to assume that you are not. Experienced counsel can often communicate with the assigned Assistant U.S. Attorney to gain a better understanding of your role in the investigation and the government’s expectations regarding compliance.

Preserve Documents Immediately

Once a subpoena is received, document preservation becomes critical. Businesses should promptly suspend any routine document destruction policies that could affect potentially responsive materials. This includes:

• Emails;
• Text messages;
• Internal messaging platforms;
• Financial records;
• Accounting data;
• Cloud-based files;
• Backup systems; and
• Employee devices containing business information.

Failure to preserve evidence can create legal problems that are often more serious than the underlying investigation itself. Allegations of obstruction of justice or destruction of evidence can dramatically alter the course of a federal investigation. To ensure compliance, a litigation hold should generally be implemented promptly.

Resist the Urge to “Explain Things” to Investigators

Federal agents may contact subpoena recipients seeking interviews or additional information. While many people believe that cooperating immediately will help resolve matters quickly, speaking with investigators without counsel can be risky and should not be done. Often, it is not the underlying conduct that creates exposure but statements made during the investigation itself.

Federal investigations frequently involve complex factual and legal issues. Innocent misstatements, inaccurate recollections, or incomplete explanations can create significant problems. Before participating in any interview or providing substantive information, individuals should consult counsel familiar with federal criminal investigations and grand jury practice.

Evaluate Potential Privilege Issues

There are several legal grounds on which a subpoena may be contested. They include technical issues, such as improper service, as well as more substantive objections regarding the scope of the requested documents. In addition, the existence of a privilege may prevent the disclosure of certain requested testimony or documents. Various privileges and protections may apply, including:

• Attorney-client privilege;
• Attorney work-product protection;
• Joint defense or common-interest protections; and
• Certain statutory confidentiality protections.

Improperly producing privileged materials can result in a waiver that may be difficult—or impossible—to reverse. Accordingly, a careful privilege review should occur before any production is made to the government.

If You Are Asked to Testify, Preparation Is Essential

A grand jury appearance differs significantly from testimony in a civil deposition. Grand jury proceedings are conducted in secret. The prosecutor controls the questioning, and there is no judge present in the room. Unlike at trial, defense counsel generally may not accompany a witness into the grand jury chamber. For those reasons, thorough preparation is critical.

Before any appearance, counsel should assess:

• The purpose of the testimony;
• Areas of likely questioning;
• Potential privilege issues;
• Fifth Amendment considerations; and
• Exposure risks arising from the investigation

Corporate Recipients Face Additional Considerations

When a subpoena is directed to a company, management must carefully evaluate who will coordinate the response and whether separate counsel may be necessary for individual employees. In some situations, the company’s interests and those of certain employees may diverge. What appears at first to be a routine document collection exercise can quickly evolve into a more complicated matter involving individual representation, internal investigations, and potential conflicts of interest. Early legal guidance can help avoid missteps that become difficult to correct later.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.