Reining In Overbroad Criminal Subpoenas – Is Some Relief In Sight?

April 02, 2014

In the wake of the national financial crisis, both the U.S. Department of Justice (“DOJ”) and the U.S. Securities and Exchange Commission (“SEC”) publicly committed themselves to enhanced enforcement of federal financial laws and regulations. Attorney General Eric Holder stated that the DOJ will “remain aggressive” in pursuing white-collar criminal cases. Similarly, SEC Chairwoman Mary Jo White pledged to make the Commission a “strong and effective cop” that will be “aggressive and creative” in its use of enforcement tools.

Proof of these public pronouncements has taken the form of increased criminal prosecutions, criminal investigations, and SEC enforcement actions. Many of these actions, in turn, have demonstrated a new-found appetite among federal prosecutors, investigators, and regulators for obtaining significant amounts of electronically stored information (“ESI”).

Historically, limitations on the potential scope and cost of collecting, reviewing, and producing such electronic information that exist in civil discovery offered no relief or sanctuary to companies or individuals facing criminal or regulatory investigations. Recently, however, some members of the federal judiciary – steeped in civil eDiscovery experience – have demonstrated a willingness to require the government to (i) limit subpoenas to information for which the government has probable cause to request and (ii) destroy irrelevant information.

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