Responding to a Federal Criminal Subpoena

May 2025

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What happens when someone receives a federal criminal subpoena?  In this article, we explain the basics of the subpoena process and discuss ways in which a person might respond.

I.             Basics of a Subpoena

Subpoenas are court orders that may be issued in both civil and criminal cases, but different rules apply depending on the context.[1]  In a criminal case, a subpoena may “command [a] witness to attend and testify at the time and place the subpoena specifies,”[2] and it may “order the witness to produce any books, papers, documents, data, or other objects.”[3] 

II.          Complying with a Subpoena

When a person receives a subpoena like that, what options do they have?  First and most obviously, the person may comply with the subpoena, appearing in court as ordered and providing any requested documents.

In some instances, however, the individual (often through an attorney) may want to contact the party who issued the subpoena and negotiate its terms.  For instance, subpoena deadlines can often be extended, particularly when more time is needed to collect and review documents or to make other necessary arrangements.  And in other cases, the issuing party might be willing to narrow its request or otherwise limit the scope of the subpoena.

III.       Challenging a Subpoena

If those negotiations fail, or even without negotiation, a subpoenaed person may ask a court to quash the subpoena—that is, to order that the person need not comply with the subpoena.  A court “may quash or modify [a] subpoena if compliance would be unreasonable or oppressive.”[4]  “Courts have recognized various ways in which a subpoena may be unreasonable or oppressive,” including “if it is irrelevant, abusive or harassing, overly vague, or excessively broad.”[5]

a.   Overbroad

A subpoena may be quashed as unreasonable or oppressive if it makes an overbroad request.  A subpoena is “not intended to provide a means of discovery for criminal cases,” so the issuing party must identify the documents with specificity and demonstrate their relevance and admissibility.[6]  If the subpoena fails to identify specific documents, a court will likely view it as “merely a fishing expedition to see what may turn up” and issue an order quashing the subpoena.[7]

For example, a subpoena seeking “all” or “any” documents in certain categories would at least be “suspect” if not unreasonably overbroad.[8]  And if a subpoena leaves the recipient to guess what documents must be produced, it might be declared impermissibly vague.[9]  Instead, a subpoena should only request certain, specifically identified documents. 

As we have said, a subpoena must also focus on relevant, admissible documents.  For that reason, “a subpoena may be quashed when no effort is made to tailor the request to the investigation, even if some fraction of the material the subpoena seeks is relevant.”[10]

 b.   Privilege

A subpoena must also not “violate a valid privilege, whether established by the Constitution, statutes, or the common law.”[11] So a subpoena may not seek privileged information, and it may be deemed overbroad if it makes a blanket request that fails to distinguish between privileged and non-privileged material.[12] 

Although a party, sometimes even the federal government, may want to review privileged materials, that would be an impermissible use of a federal criminal subpoena.  “At times, [the attorney-client] privilege may prevent the Government from obtaining useful information, but this is the price we pay for a system that encourages individuals to seek legal advice and to make full disclosure to the attorney so that the attorney can render informed advice.”[13]

Instead of immediately quashing a subpoena that demands privileged material, a court might instead order the subpoenaed party to produce what is known as a “privilege log.”  Once the opposing party receives the log, it can decide whether to challenge the assertion of privilege or withdraw its request for those documents. 

A privilege log will typically include “detailed information for each item as to which [] privilege is claimed indicating the type of document, its date, the persons who received the information in the document, and the basis for the assertion of privilege.”[14]  The person asserting privilege bears the burden of proof, so a court may reject a privilege claim if the log provides insufficient information from which to assess the claim.[15]

IV.        Fifth Amendment Act-of-Production Doctrine

Finally, as we have explained in a prior article, the Fifth Amendment provides that no person “shall be compelled in any criminal case to be a witness against himself.”  That protection also applies against the production of documents pursuant to a subpoena when the act of production is itself (i) compelled, (ii) testimonial, and (iii) potentially incriminating.[16]

By producing a requested item, an individual necessarily admits that the item exists, is in his possession, and is authentic.  If one of these three implicit admissions would be covered by the Fifth Amendment, the “act of production” doctrine may apply to preclude compliance with the subpoena.[17]

To be clear, a person may not invoke this protection simply because the requested documents “contain incriminating assertions of fact or belief”[18]—this is the difference between “I don’t want to produce this document because it looks bad for me” and “I don’t want them to know I have this thing (which is bad for me).”  The latter can be a legitimate reason to invoke the Fifth Amendment, but the former is not.

* * * * *

There are many viable responses to a federal criminal subpoena, and the best way forward will depend on the circumstances.  If you receive a subpoena, you may wish to consult with an attorney before taking any action.

[1] A federal criminal subpoena can typically be identified by its reference to a grand jury, an accompanying letter from an Assistant United States Attorney or Department of Justice attorney, or the fact that it was delivered to you by a law enforcement officer.

[2] Fed. R. Crim. P. 17(a) (“Rule 17”).

[3] Rule 17(c)(1).

[4] Rule 17(c)(2); see also United States v. Nixon, 418 U.S. 683, 698 (1974) (a subpoena “may be quashed if … production [of the documents] would be ‘unreasonable or oppressive’”).

Parties to a criminal case can issue a subpoena under Rule 17, but grand juries may issue their own subpoenas before a case is brought.  A grand jury subpoena, however, may still be challenged under Rule 17.  See United States v. Under Seal (In re Grand Jury Doe No. G.J. 2005-2), 478 F.3d 581, 584–85 (4th Cir. 2007).  “Although the grand jury operates with great independence, ‘the powers of the grand jury are not unlimited and are subject to the supervision of a judge.’”  Id. (quoting Branzburg v. Hayes, 408 U.S. 665, 688 (1972)).

[5] Id. at 585 (citations omitted).  Some courts will also quash a subpoena that “intrudes gravely on significant interests outside of the scope of a recognized privilege.”  Id. (citations omitted).

[6] Nixon, 418 U.S. at 698, 700 (citation omitted).  Note, however, that the federal government faces an easier test than a party to a criminal case when defending grand jury subpoenas.  United States v. R. Enterprises, Inc., 498 U.S. 292, 297–99 (1991).

[7] Bowman Dairy Co. v. United States, 341 U.S. 214, 221 (1951); see also United States v. Skilling, 2006 WL 1006622, at *2 (S.D. Tex. Apr. 13, 2006) (Lake, J.).

[8] United States v. Potts, 2017 WL 1314193, *4 (S.D. Tex. Apr. 6, 2017) (Lake, J.); see also United States v. Bermingham, 2007 WL 1052600 (S.D. Tex. Apr. 5, 2007) (Werlein, J.).

[9] United States v. Hankton, 2014 U.S. Dist. LEXIS 21874, *5 (E.D. La. Feb. 21, 2014) (granting motion to quash because subpoena’s requests were “so vague and overbroad that the Court [could] only speculate as to the nature of the materials and their relevance”).

[10] Grand Jury Subpoena v. Kitzhaber, 828 F.3d 1083, 1089 (9th Cir. 2016).

[11] United States v. Calandra, 414 U.S. 338, 346 (1974) (citations omitted).

[12] See In re Grand Jury Proceedings, 601 F.2d 162, 171–72 (5th Cir. 1979); In re Martin Marietta Corp., 856 F.2d 619, 622 (4th Cir. 1988) (citing C. Wright, Federal Practice Procedure Criminal 2d § 275, at 162–163) (“A subpoena duces tecum should be quashed or modified if it calls for privileged matter.”).

[13] In re Grand Jury Subpoena, 926 F.2d 1423, 1431–32 (5th Cir. 1991) (quotation marks and citation omitted).

[14] United States v. Pollok, No. 20-cr-110 (LJL), 2021 U.S. Dist. LEXIS 174514, at *3 (S.D.N.Y. Sep. 13, 2021).

[15] United States v. Fluitt, 99 F.4th 753, 763–64 (5th Cir. 2024).

[16] See United States v. Hubbell, 530 U.S. 27, 28 (2000); United States v. Doe, 465 U.S. 605, 610 (1984).

[17] Importantly, the act-of-production doctrine can be invoked by individuals and sole proprietorships, but it does not protect “corporations and other collective entities.”  In re Twelve Grand Jury Subpoenas, 908 F.3d 525 (9th Cir. 2018) (quoting Braswell v. United States, 487 U.S. 99, 104, 108 (1988)).

[18] Hubbell, 530 U.S. at 35–36 (emphasis added).

KHALIL & LAKE is a white-collar litigation boutique focusing on federal criminal law, appeals, and complex investigations in a variety of business sectors. If you have any questions about these issues, or if you would like a copy of any materials mentioned here, please let us know.