Responding to Administrative Agency Subpoenas

Having an action plan, protocol and procedure in place to address, in a timely and efficient manner, the demands being made from a subpoena helps conserve immediate resources. 

A legal demand to compel production of information, documents or testimony, subpoenas are commonly used to obtain information and evidence from a non-party in an ongoing court matter. Beyond the courts, however, administrative agencies in federal and state systems often have the authorization to issue administrative agency subpoenas outside traditional civil or criminal proceedings as part of an investigation into an event or practice of a business. These subpoenas are increasing and warrant attention.

Court review of agency subpoena authority

Administrative subpoenas are generally enforced and challenged in court. Current court precedent views agencies as having very broad authority to subpoena. Judges and courts can differ, however, in their review of a subpoena’s scope.
In considering the enforcement of a subpoena, a judge may rely on well-established federal case law, which holds that when asked to enforce an administrative subpoena a court should look to:

• Whether Congress granted authority to investigate; 
• Whether procedural requirements have been followed; 
• Whether the evidence is relevant and material to the investigation; and 
• Whether the request is not unreasonably broad or unduly burdensome.

Like the federal courts, most state courts follow the same analysis in evaluating state agency subpoena enforcement. And these more local decisions also demonstrate differing views of how broadly the allowable scope of agency subpoenas for an investigation can go. When pushed, subpoenaing agencies seek court “confirmation” of their authority to seek the information requested, as opposed to permission. Therefore, given the wide scope of what an agency is permitted to seek, the question becomes what to do when faced with an investigative subpoena from a governmental agency.

Considerations

Establish a plan. Having an action plan, protocol and procedure in place to address, in a timely and efficient manner, the demands being made from a subpoena helps conserve immediate resources. Complying with a subpoena requires significant time and effort. The costs increase without an organized and efficient process in place—worked through with counsel—to anticipate and respond to any subpoena.

Timing is everything. Subpoenas have a “return date” or compliance date, chosen by the agency and perhaps dictated by the agency’s procedural rules. The time to respond can be capped at 30 days, the deadline should be identified and calendared, and assume that the response deadline will be enforceable. If an extension is necessary, consider reaching out to the agency in writing sooner rather than later.

Notice to team members, notice to preserve. Immediate thought should be given to which organization members need to know about the subpoena, and begin working toward compliance. Quickly identify who oversees the information within each of the requests, and who supervises the team members, to establish specific lines of communication. Also consider whether proprietary information or trade secrets are within the scope of the request; their identification can assist a later objection to the request or help develop disclosure parameters to maintain their confidentiality.

Contact legal counsel. Counsel should be contacted early so they can direct and control the subpoena response. The initial work of identification and location of documents will assist counsel in its efforts to challenge or comply with the request. Without the direction of counsel, the initial work may fall outside the protections available from an attorney-client communications privilege. Information and communications created during the initial subpoena response effort may become “discoverable” if the investigation proceeds further.

Reasonableness. If court enforcement is sought, courts are generally less likely to punish a party that has conducted itself reasonably and in good faith. The efforts made early in the process of responding to an agency subpoena can help establish a defense to claims by an agency that its authority was ignored.

An agency subpoena may be the first notification to a business of an agency investigation. Establishing a process to effectively address such requests will enable a well-prepared response, which may also provide the basis for an effective defense of the alleged conduct being investigated. An effective response process helps all team members, including counsel, to establish a solid basis to respond. 

Example of agency subpoena authority and enforcement 

In October 2023, a federal court in Seattle issued an order enforcing a subpoena served by the U.S. Department of Labor on Starbucks, which demanded information related to company expenditures in response to union organization activities. The subpoena was related to the DOL’s investigation into whether Starbucks complied with federal labor laws requiring financial disclosures. 

In considering the enforcement of the subpoena, the judge relied on well-established federal case law. The Starbucks’ judge enforced the subpoena because all of the criteria were met. The judge noted that “courts have generously construed the term ‘relevant’ and have afforded access to virtually any material that might cast light on the allegations against [it].” 

The 11th Circuit Court of Appeals, applying the same principles as the judge in Seattle, recently found that an Equal Employment Opportunity Commission subpoena for records was objectionable for requesting irrelevant information. In that case, an employer operated seven facilities across the country and when an employee at one facility complained that he had been wrongfully terminated for attendance-related infractions, the EEOC demanded information on every employee at all seven facilities. The court in that case held that because the investigation was limited to one facility, information about six was not relevant.