Grand Juries, Subpoenas, Document Production Issues in the Digital Age, Internal Investigation, and More
| Author | Judson W. Starr/Amy J. McMaster/John F. Cooney/Joseph G. (Jerry) Block/David G. Dickman |
| Pages | 57-77 |
Page 57
Chapter 5:
Grand Juries, Subpoenas, Document
Production Issues in the Digital Age,
Internal Investigation, and More
A
common way for a company to learn that it is the subject of a government investigation is for an
ocer, employee, or former employee to report to management that he or she has been contacted
by a law enforcement agent seeking an interview. is interview is often a precursor to the receipt
of a subpoena commanding the employee’s appearance before a grand jury and should be treated with the
utmost seriousness. e company also may learn of the government’s interest in its activities through receipt
of a grand jury subpoena for documents or other evidence.
is chapter discusses the basics of grand juries and grand jury subpoenas, as well as common issues
that arise in this area, including conducting an internal, i.e., shadow investigation, privilege and waiver,
production of documents, protecting employee and company rights, strategy decisions (including whether
to enter into a joint defense agreement and/or disclose the results of the company’s internal investigation),
disciplining employees, corrective actions, and global settlements.
I. Grand Jury
A. The Basics
e Fifth Amendment states in part: “No person shall be held to answer for a capital, or other wise infa-
mous crime, unless on a presentment or indictment of a Grand Jur y, except in cases arising in the land or
naval forces, or in the Militia when in actual ser vice in time of War or public danger.” Grand jurors are
generally drawn from the same pool of potential jurors as a re any other jury panels, and in the same man-
ner; however, they are not screened for bias or other improper factors.
e original purpose of the grand jury was to act as a buer between the king (and his prosecutors) and
the citizens. Critics argue that this safeguarding role has been era sed, and that a prosecutor today could
“indict a ham sandwich” if he or she so chose. As the American Ba r Association (ABA) has stated:
e grand jury is independent in theor y, and although the instruct ions given to the grand jurors inform them
they are to use their judg ment, the practical re alities of the situation mitigate again st it.
e grand jury hears only cases brought to it by the prosecutor. e prosecutor decides which witnesses to call.
e prosecutor decides which witnesses will receive immunity. e basic questioning is done by the prosecutor
on a theory he or she articulates. e grand jury members are generally permitted to ask questions at the end of
a witness’s testimony. e prosecutor generally decides if he or she has enough evidence to seek an indictment.
Occasionally the grand jurors may be asked whether they would like to hear any additional witnesses, but since
their job is only to judge what the prosecutor ha s produced, they rarely a sk to do so.
e prosecutor drafts the charges and reads them to the grand jury. ere is no requirement that the grand jury
be read any instruc tions on the law, and such instruct ions are rarely given.1
1. ABA, FAQs About the Grand Jury System, http://www.abanow.org/2010/03/faqs-about-the-grand-jury-system (last visited May 28, 2013).
Page 58 Environmental Crimes Deskbook 2nd Edition
e primary function of the modern grand jury is to review the evidence presented by t he prosecutor
and determine whether there is probable cause to return an indictment. If the grand jury fails to return
an indictment, the prosecutor can try a gain to obtain an indict ment, i.e., double jeopardy does not apply.
An indictment normally consists of a short and plain statement of where, when, and how the defendant
allegedly committed the oense. Each oense must be set out in a separate count. Indictments for complex
crimes, such as environmental crimes, may consist of hundreds of pages.
For criminal environmental investigations, “long-term” grand juries will typically be impaneled. ese
grand juries generally sit fewer days e ach week, and t heir terms can be extended in six-month increments
for up to t hree years. Should a grand jury “expire” before an indict ment can be returned, the prosecutor
need not re-present all of the evidence to the new grand jury. e new gra nd jury is provided with tran-
scripts of previous proceedings for its review.
Rule 6(e) of the Federal Rules of Criminal Procedure prohibits grand jurors from disclosing what hap-
pened before the gra nd jury, unless they are ordered to do so in a judicial proceeding. Witnesses before a
grand jury are not so prohibited, however. us, interviewing grand jury witnesses (should they be willing)
on the substance of their testimony is a common component of a company’s internal investigation, as will
be discussed later.
While a witness may not have his or her lawyer present in the grand jury room, he or she may interrupt
the testimony and leave the grand jury room to consult with counsel. A witness ca lled before a grand jury
under a grant of immunity may not refu se to testify based upon concerns about self-incrimination. e
grant of immunity overcomes the witness’ privilege against self-incrimination. is grant of immunity
prohibits the prosecutor from using that testimony (or the “fruits” of such testimony) to bring charges
against the witness. Should the prosecutor decide to pursue charges, she bears the burden of proving an
independent source for the evidence. Notably, however, false testimony before a grand jury may result in
the witness being separately prosecuted for perjury.
e target of a grand jury investigation has no right to present evidence in his or her defense. Generally,
a target is not called before the grand jury u nless it is essential for the prosecutor to do so. Many prosecu-
tors will inform a witness if they are a target of the grand jury investigation, if asked. Nevertheless, only
the U.S. Court of Appeals for the Second Circuit requires that such information be provided as a matter of
law.2 us, if your client is contacted by the government, it is important to determine his or her status (wit-
ness, subject or target) before consenting to an interview. Depending upon what the prosecutor divulges,
it may be prudent to obtain some sort of immunity from prosecution for information shared by your client
during the interview,3 or to provide an attorney proer. In extreme circumstances, it may be advisable for
your client to avoid being interv iewed through reliance on the Fifth Amendment’s privilege against self-
incrimination. Such a refusal, however, generally results in indictment.
B. The Grand Jury Subpoena
A grand jury has broad power to investigate, and the scope of its subpoena power is co-extensive. All
relevant witnesses, non-privileged documents, and other physica l evidence may be subpoenaed so long as
the demand is not unreasonably burdensome on t he recipient. e prosecutor may not use a grand jury
subpoena to conduct a “shing expedition”4; however, the low burden of “relevance” is easily met, a nd a
subpoena is rarely invalidated on the basis that it sought information irreleva nt to the grand jury’s inves-
tigation. Subpoenas also may not be used to conduct civil investigations, trial discovery, or to hara ss or
intimidate those subpoenaed. Showing misuse of a grand jury or its subpoena powers is a dicult burden
for the defense to meet, however.
When responding to a subpoena duces tecum, i.e., for documents or other evidence, counsel should
remember that the obligation to respond to the subpoena is a continuing one.5 us, later-discovered mate-
3. is is often referred to as “Queen for the Day” immunity.
4. United States v. R. Enterprises, Inc., 498 U.S. 292 (1991); FTC v. American Tobacco Co., 264 U.S. 298, 305-06 (1924).
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