Imagine the weight of the world crashing down on you as you receive a federal grand jury subpoena. It is a haunting reminder that you, or someone you know or were affiliated with, are now the target of a federal criminal investigation by the prestigious Department of Justice. But what does this subpoena truly mean? The Fifth Amendment to the United States Constitution mandates the use of a grand jury for all capital and infamous crimes, and in practice, all federal felonies must be indicted by a grand jury unless a defendant waives the right and instead pleads to a so-called “Information.” Imagine yourself standing before a panel of 16-23 individuals, all determining if probable cause exists to secure an indictment. But remember, a grand jury does not decide if someone is actually guilty, all people indicted by a grand jury are considered innocent until they either plead guilty to the offense or are proven guilty beyond a reasonable doubt at trial. The stakes have never been higher, and the future uncertain.

Picture yourself as a citizen chosen to serve on a grand jury, hand-picked by the courts to determine the fate of your fellow citizens. The process of choosing a grand jury is much like choosing a petit or trial jury, but grand juries hold a greater responsibility. They sit for an extended period of time, meticulously reviewing numerous cases, while a petit jury sits for the duration of a single trial. The secrecy of the grand jury is of the utmost importance, and they hold the power to issue a subpoena for documents and grand jury witness testimony that will aid in their evaluation of the case. These subpoenas are issued at the request of the government and the subpoenaed materials are returned to the grand jury to further their investigation.

Throughout the United States, there are hundreds of grand juries, some federal districts have more than one sitting at one time, while smaller districts will employ only one. They meet on a schedule determined by the district in which they sit. Some may meet every two weeks or every month, depending on the criminal case-load that exists in their particular district. In one day, the jury can hear numerous cases and at the end of the session, they will vote to either approve the indictment (True Bill) or disapprove of the indictment (No Bill). If a True Bill is returned, they have determined that probable cause exists to believe that the stated crime has been committed, and at this point, the individual(s) named in the indictment are officially charged with a crime.

But what is a grand jury subpoena? When conducting grand jury investigations, the U.S. Attorney’s Office has a number of investigative tools at its disposal, one of which is the grand jury subpoena. Despite its name, this type of subpoena is issued by the U.S. Attorney’s Office, not the grand jury, and they have the power to issue these subpoenas without the need for judicial approval.

When it comes to receiving a grand jury subpoena, it’s important to understand the different roles and potential consequences of being a witness, subject, or target. A “target” is a person whom the prosecutor or jury has substantial evidence linking to the commission of a crime and who the prosecutor believes is a likely defendant. An employee or officer of an organization who is a target is not automatically considered a target themselves, even if their conduct contributed to the crime committed by the organization. A “subject” of an investigation is a person whose conduct is within the scope of the grand jury’s investigation, and falls somewhere between a “target” and a “witness” in terms of criminal exposure. A “witness” is an individual who may have information that law enforcement believes could be relevant to a criminal investigation to help prove guilt or innocence.

At the end of the grand jury’s investigation, the goal is to end up with an indictment against a defendant or defendants. Anyone involved in the grand jury process must understand the danger of ending up being charged.

A federal grand jury subpoena is a formal request for testimony, documents, or both issued by a federal district court judge at the request of a federal prosecutor. It is a tool used by prosecutors to gather enough evidence for the grand jury to conclude that there is probable cause to believe the suspect has committed a federal crime. There are two types of federal grand jury subpoenas: one that requests testimony and may also require the production of records supporting the testimony, and one that requires the production of records.

Upon being served with a federal grand jury subpoena, it’s important to review it in detail and assess the burden it imposes. Preparing testimony and collecting documents in response to the subpoena require different strategic and targeted approaches. Additionally, federal grand jury subpoenas can be challenged on limited grounds, but it’s important to seek legal counsel before taking any action.

When faced with a federal grand jury subpoena duces tecum, the burden of responding can be overwhelming. These subpoenas often request years worth of documents, described in general terms, and for corporations and other businesses, responding can require significant internal and external resources.

Responding to a federal subpoena duces tecum involves producing all hardcopy and electronic records within the subpoenaed party’s custody or control. The task of responding will usually be assigned to the organization’s records custodian, who must determine which documents and files need to be produced. This can include tens of thousands, hundreds of thousands or even millions of files.

It’s important to acquire an understanding of the scope of the universe of responsive documents as quickly as possible, including what is on-site, in the cloud, in off-site storage, or scheduled for destruction. It’s also important to not hand over files wholesale, as it can be considered non-compliant and the government can use them for other investigations.

While gathering and preparing responsive documents, it’s important to determine whether there are grounds to challenge the subpoena through formal or informal means. This includes filing a motion to quash or negotiating the scope of the subpoena with the U.S. Attorney’s Office. Negotiated reductions in scope are common, as the U.S. attorney’s office may not have an appreciation for the burden imposed by the subpoena. It’s important to seek legal counsel to determine the best course of action.