It is now common knowledge that the U.S. Department of Justice is conducting an investigation into possible anti-trust violations among automotive suppliers. This investigation seems to be expanding by the week, and numerous suppliers either have received or may soon receive a Grand Jury Subpoena for documents and information. How do you respond if your company is served with a Subpoena? With the assistance of competent counsel, here are six steps you should take:
1. Immediately Read the Subpoena: As you soon as you receive the subpoena, review it carefully. Resist the temptation to ignore this daunting document for a few hours, or days, to instead focus on other business matters. It is important that you promptly determine what categories of documents and information the Government wants, what steps or procedures it is directing you to take, and when your response is required.
2. Immediately Preserve Documents and Electronically Stored Information: After your careful review of the Subpoena, immediately take steps to preserve all electronic and paper documents that could be responsive to the Subpoena. The Subpoena will call for a vast amount of various types of electronic data to be produced – emails, calendar entries, file servers, back up tapes, etc. With the guidance of your information technology staff, stop all regular document destruction policies, and preserve relevant electronic data and back up tapes. Preservation action should begin the very day the Subpoena is served. Moreover, all employees who may have responsive documents should receive a written notice that they must not delete or destroy those documents.
3. Communicate with the Government: Your counsel should promptly communicate with the Department of Justice. Among other things, it should be determined whether the company is a “target” of the investigation, as well as the true scope of the investigation and the Subpoena, various ways to limit the breadth of the subpoena, and the nature and form of the documents to be produced. Educate the Government about the company and its product array. It is also important to be cooperative.
4. Conduct an Internal investigation: The company should conduct a thorough internal investigation, including employee interviews, to determine where all potentially responsive documents may be located. This investigation may also shed light on any potential problematic conduct.
5. Producing the Documents: As mentioned above, it is imperative to work with the Government to determine what database locations will be searched, whether to use search terms to retrieve the data, and in what electronic format the documents will be produced. An e-discovery vendor will likely need to be retained to assist in gathering the data, and attorneys will need to review it.
6. Plan for the Costs: Taking the necessary steps to respond can be a time consuming and expensive process. Be ready for this by making the appropriate preparations and disclosures internally. Don’t let the costs get in the way of doing what is necessary to comply with the Subpoena. It is far better to incur such costs in properly complying with the Subpoena, rather than failing to adequately comply and risk exposing the company or individuals to criminal obstruction of justice charges.