Last month, we examined the first steps to take when you discover that your practice may be under federal investigation for health care fraud. Now we turn to what you should do if you personally receive a subpoena.
What is a Subpoena?
Let's start with the basics. A subpoena is a legal document that orders a person or entity to either produce documents or appear for testimony. Depending on the jurisdiction, a subpoena can be signed by a judge, prosecutor, other government lawyer, or even a lawyer representing a private party. Instead of a subpoena, you may receive a "civil investigative demand" or CID, which operates like a subpoena.
A subpoena has several sections. At the top, it will list the court or agency that issued the subpoena. It will also list the date and time for the production of documents or for testimony. If it is a subpoena duces tecum — a subpoena for documents—then it will usually have a separate page or more with numbered paragraphs listing the specific documents requested and the instructions for producing the documents. Finally, a subpoena will include the name and contact information for the person who issued the subpoena.
How Is a Subpoena Delivered?
A subpoena cannot simply be emailed or emailed to you. Rather, the government must "serve" you with the subpoena by handing it to you personally. Most often, the government will use someone in law enforcement, such as from the U.S. Marshal's Service, the handle service of a subpoena.
Alternatively, a government agent (such as an FBI agent) or a government lawyer will get in touch with you and ask that you "accept service" of a subpoena. This means that you agree to take the subpoena without forcing the government to use a process server or federal marshal to serve you.
Can I Ignore a Subpoena?
You must respond to a subpoena. Failing to respond may result in serious penalties. Under Rule 17 of the Federal Rules of Criminal Procedure, a person who "disobeys" a validly-issued subpoena may be held in contempt by a court. Being held in contempt results in a fine and even jail time (in very rare circumstances). As a practical matter, failing to respond causes the government to be very suspicious of you and could turn your status as a witness in the investigation into something much more serious.
The First Four Steps When You Receive a Subpoena
First, you need to read the subpoena carefully. In particular, you can find out a lot from a request for documents, including what agency is interested in seeing your documents, the general topic of the investigation, and so forth. In particular, you need to learn who you can contact with questions and when you are supposed to respond.
Second, you need to be sure you do not delete any documents that may be responsive to the subpoena. This is critical. If you delete documents responsive to a subpoena after you receive it, this could be considered obstruction of justice. Even if you are never charged with any other crimes, an aggressive prosecutor could charge you with obstruction simply for deleting a few emails or texts. You also need to make sure relevant documents are not automatically deleted. If your home email account automatically deletes emails after 90 days, you need to turn off that function and save everything.
Third, you should consider calling a lawyer. A lawyer can help you navigate this situation by communicating with the government, negotiating how and when you will respond to the subpoena, and finding out more about your role in the investigation (a target or just a witness). Plus, a lawyer can help you challenge the subpoena in court, if necessary. Finally, you will also want to make sure that you do not disclose any privileged information and comply with HIPAA's requirements to protect private health information.
Fourth, be mindful that you may not realize why your documents are of interest to the government. For example, consider a situation where a doctor receives a subpoena asking for his communications (emails, texts, and so forth) with a specific sales representative for a laboratory company. The doctor's first thought may be, "No problem, I didn't do or say anything wrong in those emails. I'll just turn them over."
Here's the rub: The doctor may not realize why the emails or texts are problematic — in his reading, they show plans for get-togethers at local restaurants with the rep. The prosecutor has a very different perspective. He's looking for evidence of wrongdoing, perhaps an indication that the doctor traded Medicare business for dinners or lunch for his staff. The government may already have internal communications from the laboratory suggesting that the sales rep was having success bribing this doctor with dinners to send more Medicare business to the lab. All of a sudden, those "innocent" texts planning dinners are not so innocent.
The lawyer for the doctor can work with him to develop an explanation for the troubling communications to try to head off a legal problem. Simply turning the documents over without understanding the possible repercussions is a dangerous game. A follow-up interview by an FBI agent based on those documents could result in unintentionally incriminating statements by the doctor.
The purpose of this post is not to scare you. In fact, in many situations, there is nothing to fear from receiving a subpoena. The problem is that you don't know whether you should be concerned or not when you first get one. The best path is to tread carefully until you understand your role in the investigation.