The Electronic Turn in Criminal Subpoenas

Companies served with a criminal subpoena often face a challenging dilemma. With hundreds of gigabytes, or even a few terabytes, of electronically stored information on their servers and employees' hard drives, how do they ensure an adequate response to the subpoena without their electronic discovery costs spiraling out of control?

In the civil context, parties are encouraged to meet, confer, and cooperate in the selection of key words or other search methodologies. In a criminal investigation, however, no parallel system exists.

Strict compliance with a subpoena seeking ESI may be extraordinarily burdensome and unreasonable both in time and expense. While a subpoenaed company may correctly believe that conducting highly targeted searches would result in its producing documents directly relevant to the government's investigation, the company is often at risk as to whether the protocols it employs may later be deemed by a prosecutor or regulator to be insufficient. The consequences could range from a motion to compel compliance with the subpoena to actual charges of obstruction of justice.

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