Criminal Defense Lawyers

SEC Subpoena Duces Tecum: What Records Must I Produce?

The envelope arrives by FedEx. You reconize the official letterhead immediatly—Securities and Exchange Commission. Your name is on it. The words “subpoena duces tecum” appear in bold type, followed by pages of document requests that read like someone dumped out your entire professional life and demanded to see every peice of it.

Your first instinct is probably panic. Thats normal. Your second instinct might be to start deleting emails or “cleaning up” files. Don’t. That instinct could cost you twenty years in federal prison.

Here’s what your facing: the SEC has decided your worth investigating. Not a casual inquiry—they’ve gone through the formal process of opening an investigation, and now their demanding documents. Maybe its about trades you made. Maybe its about your company’s financial statements. Maybe your just a third party who happens to have records they want. Whatever brought you here, the clock is now running.

The questions flooding your mind are probably something like: What do I actually have to hand over? Can I refuse? What about my emails with my lawyer? What happens if I cant find something they asked for? And the big one—what if theres something in those documents that makes me look bad?

This article walks through exactly what you need to know about responding to an SEC document subpoena. We’ll cover what you absolutly must produce, what you can legitimatley protect, how to buy yourself time without getting into trouble, and—this is critical—the criminal exposure that comes with getting any of this wrong.

Because here’s the thing most people dont realize until its to late: the cover-up is almost always worse then the crime. Whatever the SEC might find in your documents, destroying those documents or lying about what you have will make everything exponentially worse. People who might of walked away with a civil penalty end up in prison because they panicked and made bad decisions in the first 48 hours.

So take a breath. Read this carefully. And then call a lawyer who handles SEC matters—before you do anything else.

What This Subpoena Actually Means

Let’s start with what your holding. A subpoena duces tecum is a legal demand for documents and records—its different then a subpoena ad testificandum, which compels you to appear and answer questions. You might eventually get both, but right now, there asking for papers, files, and electronic records.

Important point that most articles dont mention: the SEC cant just issue subpoenas whenever they feel like it. They have to first open a formal order of investigation. This is an internal SEC process where staff has to convince leadership that there’s something worth looking into. So if you’ve recieved this subpoena, it means your situation has already cleared that hurdle. This isnt a fishing expedition—someone at the SEC has already decided your worth the resources.

That said, recieving a subpoena doesnt necessarily mean your a target. The SEC subpoenas third parties all the time—banks, accountants, buisness partners of the people their actually investigating. You might just happen to have documents they need. Or you might be squarely in their sights. The subpoena itself wont tell you which.

The document requests attached to your subpoena probably look overwhelming. They’ll ask for categories of documents going back years—emails, financial records, trading records, communications with certain people, internal memos, board minutes, contracts. The language is intentionally broad. “All documents concerning,” “all communications relating to,” “any and all records of.” This breadth is by design; they dont want you claiming you interpreted the request narrowly and that’s why you didn’t produce something.

You’ll also notice a deadline—typically 14 to 28 days, though this varies. That deadline is real but also negotiable. Almost nobody produces everything by the initial deadline. But you have to engage, you have to communicate, and you have to show good faith. Simply ignoring the deadline is not an option.

One more thing: somewhere in the materials you recieved, there should be a Form 1662. This is the SEC’s formal explanation of your rights. We’ll get into what that form actually tells you later, but for now, know that its not just paperwork—its the SEC putting you on notice about some very serious potential consequences.

The First 48 Hours: What You Must Do Immediatly

The moment you recieve an SEC subpoena, a clock starts ticking—and I dont just mean the deadline printed on the document. Your legal obligations kicked in the instant that envelope arrived. Here’s what needs to happen, roughly in order.

Hours 0-4: Stop everything and call a lawyer. Not tommorow. Not after you’ve had a chance to “review things.” Now. Before you touch a single document, before you forward the subpoena to anyone, before you open your email and start searching to see whats there. The very first thing you do could become the most important decision of this entire process, and you need legal guidence before you make it.

Why the urgency? Because anything you do in these first hours can be scrutinized later. If you deleted an email an hour after recieving the subpoena, prosecutors will want to know why. If you forwarded the subpoena to certain people but not others, they’ll want to know your reasoning. Get counsel involved before you create any facts that need explaining.

Hours 4-24: Implement a litigation hold. This is a formal instruction to everyone in your organization (or if its just you, to yourself) that documents must be preserved. All of them. No exceptions. A proper litigation hold does several things:

• It suspends all routine document destruction—shredding schedules, email deletion policies, anything that normally gets rid of old records
• It identifies all the places where responsive documents might exist
• It notifies everyone who might have relevant documents that they must preserve them
• It creates a record that you took preservation seriously

Heres where people get into trouble: the hold has to cover personal devices to. If you’ve ever sent a work email from your personal phone, that phones subject to the hold. If you’ve discussed buisness on WhatsApp or Signal or your personal Gmail, those accounts are subject to the hold. If theres a laptop at home you sometimes use for work, thats included. The SEC’s requests dont care weather a document was on a company server or in your pocket—if its responsive, it needs to be preserved and potentially produced.

Hours 24-48: Map out where documents live. Who are the custodians—the people who have relevant records? What systems contain potentially responsive data? Is there backup storage, archived emails, cloud accounts, shared drives? Your going to need to search all of these, and the first step is knowing they exist.

During this period, you also need to decide who inside your organization needs to know about the subpoena and who doesnt. This is a judgment call that depends on your circumstances. Some people need to be in the loop because they have documents or because their going to be asked to help with the response. Other people—especially anyone who might be directly implicated in whatever the SEC is investigating—might need to be handled more carefully. Your lawyer will help you think through this.

What You Must Actually Produce

Now for the question everyone asks first: what exactly do I have to hand over? The short answer is: all responsive, non-privileged documents. But lets break down what that actually means in practice.

The SEC’s document requests will typically cover several catagories. Expect to see demands for:

• Communications – Emails, text messages, instant messages, letters, memos, anything involving the topics or people they’ve identified
• Financial records – Bank statements, wire transfers, brokerage statements, trading records, accounting records
• Corporate documents – Board minutes, shareholder agreements, offering documents, internal policies
• Personal records – Tax returns, personal bank accounts, sometimes even calendars and travel records

When they say “all documents,” they mean all documents. Physical papers in filing cabinets. Electronic files on servers. Emails in your inbox and your sent folder and your deleted items folder (yes, deleted items—those are often recoverable). Text messages on your phone. Slack channels. Microsoft Teams chats. Notes you took on your iPad. Voice messages if they can be retrieved. Basicaly, if it exists in any form and its responsive to the requests, it needs to be considered.

The scope extends beyond just your primary workspace. If you use cloud storage—Dropbox, Google Drive, iCloud—those are included. If you’ve got an old laptop in a closet that you used three years ago, that might need to be searched. Home computers, personal phones, any device you’ve ever used for anything work-related. This is why the litigation hold is so important and why it has to be comprehensive.

A word about metadata: the SEC typically wants documents produced in their native format, which means they get all the metadata too. When the email was sent, who it was forwarded to, when a document was created versus modified, who accessed a file and when. This metadata is often as important to them as the content itself, becuase it helps them reconstruct timelines and identify inconsistancies in peoples stories.

There’s a strategic element to production that your attorney will help you navigate. Rolling productions—where you produce documents in batches over time rather than all at once—are generally acceptable and can be advantageous. They buy you time to do thorough review, reduce the risk of accidentally producing privileged material, and demonstrate ongoing cooperation. The SEC often prefers rolling productions anyway because it lets them start reviewing sooner.

You’ll need to organize what you produce. Bates numbering is standard—each page gets a unique identifier. You’ll need a production log showing what you produced and when. If your producing from multiple custodians, you’ll typically organize by custodian. The format matters to; producing a spreadsheet as a PDF instead of native Excel format will frustrate the SEC staff and might require you to reproduce.

One thing that trips people up: the requests often ask for documents you “possess, custody, or control.” Control is broader then just what you physically have. If you have the right to obtain documents from a third party—say, records from an accountant who works for you—those may be within your control even though their sitting in someone else’s office. This gets complicated, and its an area where you’ll need legal guidence on what you actually have to go get versus what your not responsible for.

What You Can Protect: Privilege and Work Product

Not everything responsive has to be produced. Some documents are protected, and its critical to understand what those protections are—and what they aren’t.

Attorney-client privilege protects confidential communications between you and your lawyer made for the purpose of obtaining legal advice. The key words there are confidential, lawyer, and legal advice. A communication you cc’d to ten other people probably isn’t confidential anymore. A conversation with your accountant isn’t covered just because their a professional. Business advice dressed up as legal advice wont qualify.

The privilege belongs to the client—you—not to the attorney. That means you can waive it, intentionally or accidentally. And this is where people make costly mistakes. If you forward a privileged email to someone who shouldnt have seen it, you might of just waived privilege. If you discuss the contents of attorney-client communications with third parties, same problem. The privlege is fragile, and once its waived, you cant put the genie back in the bottle.

Work product doctrine protects materials prepared in anticipation of litigation. This covers things like your attorney’s notes, legal research, strategy memos, and similar work product. Its broader then attorney-client privilege in some ways—it can cover documents prepared by non-lawyers working under attorney direction—but its also more easily overcome. The SEC can sometimes get work product if they can show substantial need and inability to obtain the equivalent elsewhere.

If your going to withhold documents on privilege or work product grounds, you need a privilege log. This is a list of every document your not producing and the basis for withholding it. The log needs to include enough information that the SEC (and potentially a court) can assess whether your privilege claim is legitimate: the date, the author, the recipients, the general subject matter, and the specific privilege you’re claiming.

Vague entries like “attorney-client privileged communication” wont cut it. Courts have found privilege waived when logs are insufficent. Each entry needs to actually explain why that specific document qualifies for protection. This is tedious and expensive—privilege review and logging can easily become the most time-consuming part of a document production—but cutting corners here is dangerous.

Theres good news on one front: Federal Rule of Evidence 502 provides some protection against inadvertent waiver. If you accidentally produce a privileged document (and in a large production, this happens), FRE 502 says that disclosure doesnt automatically waive privilege for other undisclosed documents, as long as you took reasonable steps to prevent disclosure and promptly acted to rectify the error once discovered.

Smart practice is to include FRE 502 clawback language in your production correspondence. Something that says if either side inadvertantly produces privileged material, the producing party can claw it back without waiving privilege more broadly. This creates a safety net—though you should’nt rely on it as a substitute for careful review.

Challenging the Subpoena: When and How to Push Back

The SEC’s subpoena authority is broad, but its not unlimited. There are circumstances where you can—and should—push back. Whether that means negotiating modifications informally or filing a formal motion to quash depends on your situation.

The legal basis for challenging a subpoena is Federal Rule of Civil Procedure 45 (applied in federal court enforcement proceedings). The grounds include:

• The subpoena is unreasonably broad or oppressive
• Compliance would be unduly burdensome given your resources and the relevance of what’s requested
• The requested documents are protected by privilege
• The requests aren’t relevant to any legitimate investigation

Here’s the reality check though: courts generally defer to the SEC. Securities investigations are given wide lattitude, and judges are reluctant to second-guess the Commission’s judgment about what might be relevant. Motions to quash succeed occasionally, but their the exception. More often, the practical approach is negotiating scope reductions informally.

If your a third party—not the target of the investigation but just someone who happens to have records they want—you have somewhat more leverage. Third parties can more credibly argue that compliance is burdensome and that the SEC should narrow it’s requests or get the documents elsewhere. Customer confidentiality concerns may also give third parties grounds to push back that targets wouldn’t have.

Negotiation often works better then litigation. The SEC staff attorneys handling your matter generally prefer cooperation over conflict. If you can show that certain requests would require massive effort for documents of marginal relevance, you can often get them to narrow. If the timeline is genuinely impossible given the volume, you can often get extensions. The key is engaging early, being specific about what’s problematic, and demonstrating that your trying to comply in good faith—not just obstruct.

Some things that are commonly negotiable:

• Deadline extensions (almost always possible)
• Narrowing date ranges
• Limiting the number of custodians whose files must be searched
• Agreeing on search terms rather then demanding all documents
• Production format and technical specifications

If you do need to file a motion to quash, timing matters. You generally need to act quickly—often within 14 days of service. Waiting until the production deadline passes and then claiming the subpoena was improper is not a winning strategy. Courts expect timely objections.

A word of caution: don’t assume that challenging the subpoena will delay your obligation to preserve documents. The preservation duty exists regardless of whether you think the subpoena is valid. Destroying documents while your motion to quash is pending would be catastrophically bad judgment.

The Criminal Exposure You Cant Ignore

This is the section that could save your freedom, so read it carfully.

Many people recieve SEC subpoenas in connection with civil matters—potential securities violations that might result in fines, disgorgement, or injunctions. Bad outcomes, certainly, but not prison. The way you respond to the subpoena, however, can transform a civil matter into a criminal one.

18 U.S.C. § 1519, part of the Sarbanes-Oxley Act, makes it a federal crime to destroy, alter, or falsify documents with intent to obstruct or impede a federal investigation. The maximum penalty is 20 years in prison. Read that again. Twenty years. For destroying documents.

Let’s be direct about what this covers. Deleting emails after you recieve a subpoena—crime. Running documents through the shredder—crime. Telling an employee to “clean up” certain files—crime. “Losing” your phone—if intentional, crime. Even destruction that happens before the formal investigation, if you knew or anticipated an investigation was coming, can be prosecuted.

The government doesnt have to prove that the underlying conduct was illegal. They dont have to prove the destroyed documents would have been harmful to you. They just have to prove you destroyed or altered records with the intent to obstruct. This is why the cover-up is worse then the crime: you might of done nothing wrong with your securities trades, but if you deleted the emails about those trades after the subpoena arrived, you’ve commited a federal felony.

Beyond Section 1519, theres also 18 U.S.C. § 1512, which covers obstruction and witness tampering more broadly. Telling someone else to destroy documents? Trying to coordinate stories about what documents exist? All potentially criminal.

A question that comes up: what if I already deleted something before I knew about any investigation? This is actually pretty common—people delete old emails, clear out files, whatever. If the deletion happened in the ordinary course before you had any reason to anticipate an investigation, you’re generally okay. The crime requires intent to obstruct. Routine housekeeping that happened to destroy something relevant isn’t obstruction.

But here’s where it gets complicated. If you knew your conduct might draw regulatory attention—if you were worried about those trades, if you knew the financial statements were problematic—then deletion even before a formal investigation might be enough. Courts look at weather you had a reasonable anticipation of an investigation, not weather a subpoena had literally arrived.

If you’ve already deleted something after recieving the subpoena, or if your worried about pre-subpoena deletion, this is absolutly something you need to discuss with counsel immediatley. There may be ways to address the situation—coming forward proactively, for instance, can sometimes mitigate the consequences—but trying to hide it only makes everything worse.

The bottom line: whatever is in those documents, whatever you think the SEC might find, it is almost certainly less serious then a 20-year obstruction charge. Dont make a civil problem into a criminal one.

Form 1662 Decoded: What the SEC is Actually Telling You

Somewhere in the package you recieved is a document called Form 1662. Most people glance at it and set it aside—it looks like standard government paperwork. But this form is actually the SEC telling you some very important things, and you should understand what their saying.

The form explains your rights during an SEC investigation. Specifically:

Fifth Amendment rights: The form reminds you that you have the right to refuse to answer questions that might incriminate you. This is more relevant if they also call you to testify, but its worth noting that document production generally doesnt implicate the Fifth Amendment the same way—you cant refuse to produce documents by claiming self-incrimination, with limited exceptions for sole proprietors and certain personal papers.

Right to counsel: You have the right to have an attorney present and to consult with counsel. This might seem obvious, but the SEC is formally putting you on notice that this is a situation serious enough to warrant legal representation.

False statements warning: This is critical. The form warns that making false statements to government officials is a federal crime under 18 U.S.C. § 1001. This applies not just to testimony but potentially to written representations you make during the production process. If you certify that your production is complete when you know it isnt, that could be a false statement. If you describe documents inaccurately, same problem.

Potential sharing with other agencies: The form discloses that information you provide to the SEC may be shared with other law enforcement agencies, including the Department of Justice. This is the SEC telling you, in writing, that what you give them could end up with criminal prosecutors. If you had any doubt about weather this was serious, that disclosure should resolve it.

What the form doesnt tell you—but you should understand—is that the SEC staff’s questions and approach during the investigation can signal how they view you. Are they treating you like a cooperative witness helping them understand a situation? Or are they treating you like a target? The form gives everyone the same warnings, but how staff interacts with you provides additonal information.

Some lawyers recommend noting what Form 1662 you recieved and when, since the form is occassionally revised. The specific version may matter in some circumstances.

Production Strategy: Compliance as More Then Just an Obligation

Document production isn’t just about checking boxes—its strategic. How you produce, when you produce, and what you say (and dont say) in your cover letters all matter.

We mentioned rolling productions earlier. The advantages are worth emphasizing: you get documents out the door sooner, which demonstrates cooperation. You have more time to do careful privilege review. If you make a mistake in an early production, you can correct it in later batches. The SEC gets to start reviewing while you continue collecting. Its usually a win-win, and most SEC staff will agree to a reasonable rolling schedule.

What you say in cover letters matters more then people realize. Every letter your attorney sends becomes part of the record. Dont make admissions in cover letters—dont characterize what the documents show or speculate about there significance. Stick to factual descriptions of what your producing. “Enclosed please find documents responsive to Request No. 3” is fine. “These documents demonstrate that my client had no knowledge of the fraud” is not fine—that’s argument, and its premature.

Be aware of parallel proceedings. Documents you produce to the SEC can be shared with the Department of Justice, state regulators, and potentially private litigants. Assume that anything you produce will be seen by people beyond the SEC staff handling your matter. This affects how you describe things and what voluntary explanations you offer.

Organization matters for practical and strategic reasons. A well-organized production shows professionalism and cooperation. A disorganized document dump may technically comply but frustrates the staff reviewing it. Frustrated staff can become less flexible. They may also scrutinize your production more carefully for deficiencies.

If your production includes documents that look bad—and in most investigations, some documents will look bad—resist the temptation to “accidentally” omit them or bury them. Thats obstruction. Instead, work with counsel on how to frame them. Sometimes context helps. Sometimes its better to produce without comment and let your eventual defense address interpretation. But the documents have to be produced.

Finally, keep records of everything you do. What you searched, when you searched it, what you found, what you produced, what you withheld and why. If questions arise later about the completeness of your response, you want to be able to demonstrate the thorough process you followed.

What Happens After You Produce

Production isn’t the end—its usually just the beginning of your ongoing relationship with the SEC staff. Heres what to expect.

Follow-up requests are common. Once the SEC reviews what you’ve produced, they’ll often want more. “You produced emails mentioning X—please produce all documents relating to X.” “We see a reference to a meeting on [date]—please produce any notes or attendee lists.” This back-and-forth can go on for months. Each round triggers new preservation obligations for the specifically requested materials.

Testimony subpoenas frequently follow document productions. The SEC will want to ask you—or your employees—questions about what the documents mean. These sessions are typically transcribed. Anything you say can be used. This is where the false statements statute becomes especially dangerous: contradicting what the documents show can result in a 1001 charge.

At some point, the SEC will either close the investigation or move toward enforcement. If they close without action, you may never get a formal notice—investigations sometimes just fade away. If their considering charges, you’ll likely recieve a Wells notice, which gives you an oppurtunity to make arguments before the Commission decides weather to proceed.

Settlement negotiations often happen in parralel with the investigation. The SEC may approach with terms before they’ve finished investigating. Whether to settle early versus waiting depends on many factors—the strength of your position, the risk of continued investigation, the terms being offered. Your counsel can help evaluate.

One thing people dont realize: even after an investigation closes favorably, the SEC may reopen it if new information emerges. Documents you produced are retained. Your cooperation (or lack thereof) during the initial investigation becomes relevant if matters resurface.

The relationship with SEC staff can be ongoing if your in a regulated industry. Being difficult during one investigation can affect how your treated in future examinations and inquiries. Cooperation, within appropriate limits, has long-term benefits beyond the immediate matter.

Making the Right Decisions Now

An SEC subpoena duces tecum is serious. The decisions you make in the days after receiving it will shape everything that follows—whether this becomes a manageable legal matter or a career-ending crisis.

The stakes are real. Beyond whatever conduct originally attracted SEC attention, you now face potential criminal liability for how you handle the response. Document destruction, false statements, obstruction—these carry penalties that dwarf most securities violations. People have received longer sentences for the cover-up than they ever would have received for the underlying conduct.

The path forward requires careful judgment. You need to preserve documents comprehensively and immediately. You need to understand the scope of your obligations. You need to identify what’s privileged and protect it properly. You need to respond cooperatively without making admissions or waiving important rights. And you need to do all of this while the SEC continues its investigation and potentially coordinates with criminal prosecutors.

This is not a situation for self-help. Whatever your background, whatever your sophistication in business matters, this requires counsel who specifically handles SEC enforcement. The procedural and strategic considerations are too nuanced, and the consequences of mistakes are too severe.

If you’ve received a subpoena duces tecum from the SEC, the most important thing you can do right now is pick up the phone and call an attorney who knows this area. Before you delete anything. Before you search anything. Before you talk to anyone about what’s in those documents. The decisions you make today will determine whether this matter resolves quietly or becomes a defining catastrophe.

The clock is running. Don’t waste it.