Oh Sh*t! I've Been Served! What To Do When You've Been Served With A Federal Grand Jury Subpoena

Grand jury representation is a niche area of criminal practice. Years ago we interviewed a new client who had been recently charged by the feds after testifying before the grand jury. He looked befuddled, explaining his lawyer - who practiced principally in New York State courts - had told him to testify in the grand jury pursuant to a subpoena, because he would thereby take an "immunity bath," that is, he'd automatically be granted immunity.

So what happened? How was he charged? He was charged because, although New York State law automatically confers immunity on a witness who testifies in a state grand jury pursuant to subpoena, absent an express waiver of rights, federal court offers no such protection. A federal witness must assert their Fifth Amendment rights and only if they are then granted immunity are they protected from the use of their testimony (or evidence derived from that testimony) against them.

So, let's take a deep dive into some of the many questions raised by federal grand jury subpoenas.

Q: I just got handed a “Grand Jury Subpoena.” What's a grand jury?

A federal grand jury is a group of citizens convened by a federal court to:

• Investigate possible federal crimes, and

• Decide whether there is probable cause to issue an indictment.

Grand jury proceedings are generally secret, and the grand jury’s investigative authority is broad—it can begin investigating even without probable cause, including based on tips or suspicions.

Q Does that mean I’m being charged?

Not necessarily.

A grand jury subpoena is a court-issued demand to testify, produce documents, or both, in connection with a federal grand jury investigation. Grand juries investigate and decide whether there is probable cause to return an indictment (a formal charge). The subpoena is a tool to gather evidence; it is not itself a charge.

Also, a subpoena is different from a search warrant. A warrant authorizes law enforcement to search and seize immediately. A subpoena generally gives you time to respond (though sometimes not much time).

Q: What should I do immediately after being served?

Think “preserve, don’t improvise”:

1. Read every page (including any attachments listing requested items and any “advice of rights” page).

2. Calendar the return date/time/location and any production deadline.

3. Do not delete or alter anything—emails, texts, chat logs, cloud files, call logs, paper files, backups—nothing. (Destruction or concealment can become a separate, serious issue.)

4. Talk to a lawyer before talking to agents/prosecutors, especially if you think you could be a subject/target.

5. If you’re a business custodian, loop in counsel who can coordinate preservation and collection in a defensible way.

Q: Everything I've heard about grand juries suggests it's all very secret. Can I tell others I've been subpoenaed? If I end up testifying can I tell others what I said in the grand jury?

Federal grand jury secrecy is governed primarily by Federal Rule of Criminal Procedure 6(e). It imposes secrecy obligations on specified participants (like grand jurors, government attorneys, court reporters, and certain assisting personnel).

However, absent a court order, Witnesses are generally not bound by Rule 6(e)’s secrecy rules the same way prosecutors and grand jurors are. That said, other laws can still apply (for example, laws against obstruction or witness tampering), and it’s often wise to coordinate communications through counsel.

Q: What is the legal authority for issuing federal grand jury subpoenas?

In federal criminal practice, subpoenas are governed primarily by Federal Rule of Criminal Procedure 17, which sets out the required contents and the court’s subpoena power.

Those federal rules exist under Congress’s authorization in the Rules Enabling Act (28 U.S.C. § 2072), which empowers the Supreme Court to prescribe rules of practice and procedure for federal courts (subject to statutory constraints).

And at the constitutional level, the Fifth Amendment’s Grand Jury Clause is part of why grand juries exist in serious federal criminal cases.

Q: If an agent serves me and wants to “just chat,” do I have to talk?

No—you are not required to chit-chat with an agent who serves you with a subpoena. As polite as the agent might be, they are not your friend.

A subpoena compels what it commands (appearance, testimony, production). It does not  require you to sit for an informal interview at the moment of service.

Is it advisable? As a general rule, no, at least not without counsel. One big reason: false statements to federal investigators can itself be a crime (commonly charged under 18 U.S.C. § 1001)—even if you are not under oath, and even if you think you’re just “clearing things up.”

A common, polite response is: “I want to cooperate appropriately, but I’m going to speak with counsel first. Please give me your card.” Then your lawyer can handle scheduling and scope.

Q: What can a grand jury subpoena require me to do?

Two big categories:

1. Give testimony (subpoena ad testificandum): Rule 17 provides that a subpoena can command a witness to attend and testify at the time and place specified.

2. Produce Documents / Electronically Stored Information (ESI) / tangible items (subpoena duces tecum): A subpoena may require production of documents, ESI, or objects described in an attachment. In real life, that can mean emails, cloud drives, phones (data), accounting files, contracts, internal chat platforms, and more.

   
   

Q: Do I have to comply with the subpoena?

In general, yes—unless a valid legal basis exists not to (privilege, Fifth Amendment issues, impossibility, or a successful motion to quash/modify).

Failure to obey a subpoena “without adequate excuse” can lead to a contempt proceeding. Rule 17 specifically authorizes contempt consequences for disobedience. If found in contempt there can be both civil and criminal consequences, including being jailed until you comply.

Q: How should I go about gathering documents to respond?

Think of it as a collection project with legal consequences. A defensible process usually includes:

1. Preservation / legal hold: Stop auto-deletion, preserve devices/accounts, and keep backups intact. (Do not “clean up” anything.)

2. Understand the request (scope and definitions): Subpoenas often define terms like “documents,” “communications,” and time ranges. Misreading definitions is a classic way to under-produce or over-produce.

3. Identify data sources and custodians: Email, messaging apps, personal devices used for work, cloud storage, shared drives, paper files, third-party vendors, etc.

4. Collect without altering: Especially for ESI, preserving metadata can matter. Your lawyer may involve an e-discovery vendor for imaging/exports.

5. Review for responsiveness and privilege: You generally want attorney review before production where privilege could exist. Privileges are common grounds for motions to quash and for withholding.

6. Produce in an organized format: Counsel can often negotiate format (native files vs. PDF, load files, Bates numbering, rolling productions).

7. Keep a copy of what you produced: And keep a record of how you searched and collected (in case scope is questioned later). if producing documents, it is good practice to Bates-stamp, so there's never an issue what was produced.

   
   

Q: What if I believe my testimony will incriminate me—what are my rights?

The Fifth Amendment privilege against self-incrimination allows you to refuse to answer questions when a truthful answer would tend to incriminate you. In DOJ practice, “advice of rights” language for certain witnesses explicitly states this.

Important practical points:

• You generally still must show up if subpoenaed; you assert the privilege in response to specific questions.

• If you assert the Fifth, the government may decide to seek an immunity order, which can change your obligation to answer.

  
  

Q: If I “take the Fifth,” can they force me to testify anyway?

Sometimes – though rarely -- the government may challenge your right to assert your privilege, arguing to a judge that there is no possibility your testimony could provide a "link in the chain" of evidence required to prosecute you.

Additionally, under federal immunity statutes, if a court issues an immunity order, the government can compel testimony, but the order will provide that neither your testimony nor any evidence derived from you testimony, can be used against you in a criminal prosecution. The basic framework is pescribed in 18 U.S.C. § 6002 (effect of immunity) and 18 U.S.C. § 6003 (how immunity orders are obtained in grand jury settings).

If you are ordered to testify under immunity and still refuse, you can face contempt (including confinement).

Q: What if they’re asking for documents that might incriminate me?

This is where people get surprised: the Fifth Amendment usually does not protect the contents of existing documents that were voluntarily created. This is because you are not being compelled to create the documents, but only to hand them over. But it can protect you from being forced to make testimonial admissions through the act of producing them.

The “act of production” privilege.

Producing documents can implicitly communicate facts like:

• “These documents exist,”

• “I have them / control them,” and

• “These are the documents you asked for” (a form of authentication).

The Supreme Court has addressed this “act of production” concept in cases including Fisher v. United States and United States v. Hubbell.

The government may attempt to defeat a valid assertion of the act of production privilege by giving you “act of production immunity.”

In some situations, prosecutors may try to overcome act-of-production concerns by seeking statutory immunity (again, under §§ 6002–6003), or by arguing that the testimonial aspects are minimal because the government already knows the documents exist and where they are (often called the “foregone conclusion” concept in case law).

Huge exception: business entities and custodians

If the subpoena is to produce corporate (or other collective entity) records and you’ve been subpoenaed as the corporate custodian, the Fifth Amendment is generally not available to refuse production on act-of-production grounds. The Supreme Court’s decision in Braswell v. United States is a leading case on this “collective entity” doctrine.

Bottom line: document subpoenas raise nuanced issues—especially if the request targets personal files vs. entity records, or if you’re a custodian. This is one of the strongest reasons to involve counsel.

Q: What other categories of privileged materials might I not have to produce?

Privileges in federal proceedings are largely governed by federal common law (and rules/cases interpreting it). They include:

• Attorney–client privilege

• Attorney work product

• Spousal privileges (often separated into spousal testimonial immunity and marital communications)

• Clergy–communicant privilege

• Psychotherapist–patient privilege 

A few practical cautions:

• Attorney–client privilege generally protects confidential communications for legal advice—but it has limits and exceptions (including the well-known “crime–fraud” principle).

• “Privileged” does not mean “anything that mentions a lawyer.” It depends on purpose, participants, confidentiality, and substance.

• Privilege can be waived in various ways; counsel may negotiate non-waiver / clawback protections where appropriate (to protect against mistaken production of privileged material) (see Federal Rule of Evidence 502 concepts for waiver control in federal proceedings).

  
  

Q: If I’m withholding documents as privileged, how do I document that?

Often through some version of a privilege log or withholding record.

A privilege log is a list that typically identifies withheld items without revealing the privileged substance—for example:

• Date

• Sender/author and recipients

• Type of document (email, memo, notes)

• General subject (high level)

• Privilege asserted (attorney–client, work product, etc.)

In some investigations, counsel negotiates the format and detail level with the prosecutor, and sometimes negotiates procedures to reduce waiver risk (including protective orders or waiver-limiting approaches).

One more nuance: in rare circumstances, even a privilege log can raise self-incrimination/act-of-production issues depending on what it would reveal—another reason privilege handling should be lawyer-led.

Q: What are the limits on what a grand jury subpoena can demand?

Grand jury power is broad, but not limitless.

1) It can’t be “unreasonable or oppressive”

Rule 17 authorizes courts to quash or modify a subpoena if compliance would be unreasonable or oppressive.

2) Relevance challenges face a steep uphill climb

In United States v. R. Enterprises, the Supreme Court described a very government-friendly standard: when a subpoena is challenged on relevance grounds, courts generally deny a motion to quash unless there is no reasonable possibility the requested materials will produce relevant information to the investigation.

3) It can’t be used for improper purposes (especially post-indictment)

DOJ policy recognizes limits like: a grand jury can’t be used solely to gather more evidence against someone who has already been indicted, or solely for trial preparation or pretrial discovery. This is because - among other reasons - the government's right to discovery is limited by Rule and Statute.

4) Privileges and constitutional protections still matter

A subpoena can’t override valid privileges or constitutional protections (though litigating those issues is often complex).

Q: Can I move to quash or modify a grand jury subpoena? On what grounds?

Yes—sometimes. A motion to quash/modify is commonly grounded in:

• Unreasonable or oppressive burden (Rule 17(c)(2) concept)

• Overbreadth (too broad in time, scope, or categories)

• Privilege (attorney–client, work product, spousal, etc.)

• Fifth Amendment issues (testimony, or act of production in appropriate contexts)

• Improper purpose (including certain post-indictment abuses)

Realistically, motions to quash grand jury subpoenas can be difficult to win—especially on relevance—because courts give grand juries wide latitude.

Q: Do I need a lawyer?

You’re not legally required to have counsel to receive or respond to a subpoena—but most often it's a good idea, especially if:

• You suspect you may be a subject or target (terms that are discussed below)

• The subpoena seeks large volumes of documents or ESI

• Privilege issues are likely

• You may need to assert the Fifth Amendment

• You’re being asked to sit for interviews outside of the grand jury (which a grand jury subpoena cannot compel you to do)

The downside risk of missteps (scope errors, privilege waiver, false statements, contempt) can be significant.

Q: What can a lawyer do to protect my rights?

A lawyer can:

• Communicate with the prosecutor (AUSA) outside the grand jury so you don’t have to

• Clarify whether the government views you as a witness, subject, or target (and what that means)

• Negotiate scope, deadlines, and production format. In cases where you're being asked to review huge volumes of documents to determine what must be produced pursuant to the terms of the subpoena, counsel can negotiate what "key words" can be searched for that will satisfy your obligations.

• Run a defensible collection process and coordinate e-discovery vendors

• Assert privileges properly and negotiate privilege protocols

• Prepare you for testimony (including how to handle Fifth Amendment issues)

• Litigate motions to quash/modify when appropriate

• Negotiate resolutions (including—in some cases—immunity issues, proffers, or alternatives to grand jury testimony)

  
  

Q: What can the government do if I refuse to comply?

If you refuse to comply, courts can use contempt powers.

• Rule 17 allows contempt consequences for disobeying a subpoena without adequate excuse.

• Under 28 U.S.C. § 1826, a “recalcitrant” witness who refuses to comply with a court order to testify or produce information can be confined until they comply, with strict limits (including an outside cap of 18 months in many grand jury contexts).

Courts can also impose criminal contempt in appropriate cases.

Q: What can the government do if they think I haven’t been truthful in the grand jury?

Lying in a grand jury room is dangerous territory.

A witness who lies may face prosecution for:

• Perjury, and/or

• False declarations before the grand jury under 18 U.S.C. § 1623 

Separately, lying to agents outside the grand jury can trigger 18 U.S.C. § 1001 exposure.

Even if you think you’re protecting yourself, inaccurate testimony can create new criminal exposure that is sometimes easier to prove than the underlying suspected offense. There's a saying lawyers use to keep in mind: "It's the not crime, it's the coverup."

Q: Can I find out if I’m a target, subject, or just a witness—and what do those mean?

Sometimes, yes—often through counsel asking the prosecutor.

DOJ policy defines:

• “Target”: a person where the prosecutor or grand jury has substantial evidence linking them to a crime and who, in the prosecutor’s judgment, is a putative defendant.

• “Subject”: a person whose conduct is within the scope of the grand jury’s investigation. We sometimes refer to a subject as a "target in training" because it doesn't mean that in the government's mind you are out of danger.

“Witness” isn’t always formally defined the same way, but practically it generally means the government believes you have information and is not currently treating you as a subject/target.

Also, DOJ policy states it advises certain grand jury witnesses of rights when they are targets/subjects, and includes language warning targets about their status.

Practical meaning:

• If you’re a target, testimony is especially risky without a carefully considered strategy.

• If you’re a subject, you’re closer to the blast radius than a neutral witness and likely should still assert your privilege.

• If you’re only a witness, you still need to be careful—but strategy may focus more on accurate cooperation and minimizing disruption.

  
  

Q: What kinds of things can my lawyer negotiate with the government before I comply?

Common negotiation points include:

• Extensions of time to produce

• Narrowing date ranges, custodians, search terms, and categories

• Rolling productions (produce in batches)

• Production format for ESI (native vs. PDF, metadata fields, load files)

• Privilege protocols (how privilege is asserted, how mistakes are handled)

• Whether an interview or “proffer” will be accepted instead of (or before) grand jury testimony (not guaranteed)

• In appropriate cases, discussions related to immunity procedures (highly fact-specific)

  
  

Q: I've heard the terms "pocket immunity" and "letter immunity" - what are they?

Sometimes the government seeks to overcome a witness's assertion of their Fifth Amendment privilege but does not want to take the time to get approval for formal (i.e. statutory) immunity from the DOJ. They therefore will offer to give the witness a letter assuring the equivalent of statutory immunity. In certain cases this may be acceptable, but not always. For one thing "letter" or "pocket" immunity only binds the prosecutorial office that signs off on it and so if you have possible exposure in other federal districts or in state court you need to be cautious. On the other hand, a prosecutor can agree in a letter or pocket immunity agreement to provide you protection additional to that provided by statute. Whereas statutory immunity provides protection against the use and derivative use of your testimony, a prosecutor may craft letter immunity to provide "transactional" immunity - that is, immunity against prosecution for the subject areas of your testimony.

Q: If I testify in the grand jury, can my lawyer be with me?

Generally, no—not in the room while you testify.

However, you can usually consult counsel outside the room. DOJ’s “advice of rights” language contemplates that the grand jury will permit a reasonable opportunity to step outside to consult counsel for legal advice.

Q: Any tips if I do testify?

Yes.

1. Tell the truth. If you don’t know, say you don’t know. If you don’t remember, say you don’t remember.

2. Listen to the exact question and answer only that question.

3. Do not guess. Grand jury transcripts are not forgiving.

4. Ask to clarify if a question is ambiguous.

5. Take breaks to consult counsel when you need to—especially on privilege/Fifth Amendment issues.

6. Avoid “helpful narratives.” Prosecutors ask structured questions for a reason.

7. If you are asserting the Fifth, follow counsel’s plan and do it consistently and respectfully. If you become unsure of yourself ask for a break to seek legal advice from counsel.

   
   

Q: Can you expand on the phrase you used before -- “It’s not the crime, it’s the coverup”?

It means that in federal investigations, people often get into deeper trouble for what they do after the investigation starts than for the underlying conduct.

Common “coverup” categories include:

• False statements to federal agents (18 U.S.C. § 1001)

• Destruction/alteration/concealment of records to obstruct an investigation (18 U.S.C. § 1519)

• Witness tampering / obstructing an official proceeding (18 U.S.C. § 1512)

• Obstruction of justice relating to jurors/court proceedings (18 U.S.C. § 1503)

• False declarations before the grand jury (18 U.S.C. § 1623)

So the safest guiding principles are: preserve documents, don’t “fix” the record, don’t influence others’ testimony, and don’t talk yourself into a new charge.

Q: What if I realize after testifying that I made a mistake?

If, after leaving the grand jury room, you realize you made a mistake in your testimony you should tell your lawyer immediately so the mistake can be quickly corrected. Correcting mistakes before the government suggests you gave false testimony will, in nearly all cases, foreclose a prosecution for giving false testimony.

Closing thoughts

Being served with a federal grand jury subpoena can mean many things—from “you have information we need” to “you’re in real jeopardy.” The subpoena itself rarely tells you which one you are. But the combination of deadlines, privilege issues, Fifth Amendment questions, and false-statement risk is exactly why people bring in counsel early.

At Levitt & Kaizer we've represented innumerable clients served with grand jury subpoenas. If you've been served, give us a call. We'll help you through it.

Richard Levitt

Levitt & Kaizer

(917) 562-4000