Knock, knock: Responding to subpoenas and search warrants.

Responding to subpoenas and search warrants

EVERY FACILITY SHOULD HAVE WRITTEN GUIDANCE AND training programs for employees in case they are served with legal process. Responding Correctly to a subpoena or search warrant served in connection with an enforcement initiative can help you to defend against fraud-related charges, should they be brought.

You should also designate a chief compliance officer with the responsibility of determining how to respond to a search warrant, which can be issued either under an agency's general statutory authority or in the context of a criminal investigation. Warrants need to be based on probable cause, a determination that must be made by a magistrate. The criteria are more exacting for search warrants in criminal investigations than for administrative warrants. The chief compliance officer should check to make sure the warrant was issued by a magistrate and is signed and dated, and that the time for execution of the warrant in a criminal investigation has not expired.

A search warrant must be executed in a reasonable manner. If charges are subsequently brought and you can prove that it was not, you can ask the judge to suppress the evidence obtained through the warrant. The U.S. Supreme Court has held that warrants must be voided where a false statement, knowingly or with reckless disregard for the truth, was included in support of the application for a warrant and where, but for that statement, the warrant would not have been issued.

All search warrants, whether civil or criminal, need to be accompanied by a definitive description of the subject matter of the search. If the warrant is overly broad or ambiguous, your counsel may want to ask the court to quash the warrant. In United States v. Abrams, a Medicare fraud case, the U.S. Court of Appeals for the First Circuit held that because a warrant issued for a doctor's office covering business records gave "no indication as to time and there was no description as to what specific records were to be seized ... the search violated the Fourth Amendment." And in Andresen v. Maryland, the U.S. Supreme Court held that a search warrant must be "sufficiently particular" so that nothing is left to the discretion of the agents.

It is also important to advise your employees of their legal rights in the event that they are asked to be interviewed by an inspector in a criminal investigation. Although the Fifth Amendment privilege against self-incrimination does not apply to corporations or their business records, a claim of privilege for the personal records of an employee can be raised.

In the case of a search warrant in a criminal investigation, your employees should understand the "plain view" doctrine, which allows an agent conducting a search to obtain information falling outside the warrant merely on the basis of the inspector's observations while on the premises.

Other protective actions may be needed during the course of a search. Ask the agent to allow you to contact your lawyer prior to conducting the search. Counsel, who should be present, may want to temporarily block the search by seeking a protective order if its scope includes trade secrets or financial information of a confidential nature.

You should be aware of your rights if you are faced with an administrative subpoena. The subpoena must set forth the statutory authority of the issuing agency. Your counsel may want to seek to quash the subpoena if it is too indefinite or unduly burdensome. You are also entitled to seek a protective order if the information sought contains trade secrets or commercial information of a confidential nature.

You should also be aware of the government's authority under the False Claims Act to issue civil investigative demands (CID), a type of administrative subpoena with significantly enhanced power to compel deposition testimony and obtain other forms of discovery (via interrogatories and document production requests) during the pre-complaint investigation stage of a false claims case.

If the government issues a CID pertaining to your operations, consult with your lawyer as to the appropriate response. The U.S. Supreme Court, in United States v. Morton Salt Co. and United States v. Powell, established standards for review of administrative subpoenas, and you should be aware of the rights and protections available to you.

Depending on the facts of the case, your lawyer may recommend seeking judicial relief from a CID. Additionally, you may want to invoke the Fifth Amendment's privilege against self-incrimination in response to discovery sought via a CID. In United States v. Markwood, the U.S. Court of Appeals for the Sixth Circuit held that this privilege may be invoked during deposition testimony initiated by a CID.

Be careful, however, not to unjustifiably impede the government's investigation by acting in an obstructive manner. The proper course to follow is through the courts.

Stuart I. Silverman practices law with Greenberg Traurig in Washington, D.C.