Document Preservation After SEC Subpoena
Learn how to respond to SEC preservation letters and subpoenas.
Last Updated: 12-18-2026
Responding to an SEC subpoena is a complex process that requires the guidance of experienced legal counsel. One of the most important aspects is document preservation. Failing to preserve relevant documents can lead to disastrous consequences. It can escalate the investigation, draw negative inferences, and result in criminal charges for obstruction of justice. Companies must understand their obligations and take immediate action to safeguard potentially responsive materials. This process requires a coordinated effort that involves legal, IT, and business teams. The process also includes implementing effective litigation holds and documentation of all preservation efforts.
At Spodek Law Group, we have extensive experience guiding clients through SEC subpoena responses, including all aspects of document preservation. We have a team of former DOJ prosecutors and SEC enforcement attorneys. They understand the agency’s expectations and requirements.
We can assist with all stages of the process, from issuing litigation holds to overseeing data collection. We can also defend your rights if the SEC challenges your preservation efforts. With our guidance, you can navigate this complex process while minimizing risks and ensuring compliance.
How the SEC Issues Document Preservation Requests
The Securities and Exchange Commission (SEC) has various tools to obtain documents and information. These tools include formal subpoenas and informal requests. Understanding each type is key to determining obligations and risks.
Subpoenas can be broad, covering years of documents and multiple custodians. They may request emails, text messages, instant messaging app logs, and paper files. Subpoenas can also request audio recordings, financial records, and any other materials relevant to the SEC’s inquiry.
Importance of Preservation
Preserving documents is not just a best practice, it is a legal obligation. When a company receives an SEC subpoena or informal request, it triggers an immediate duty to preserve all relevant materials. The duty to preserve arises as soon as litigation is, or should be, reasonably anticipated. It is not limited to just the documents specifically requested in the subpoena. Rather, it extends to any materials that may be relevant to the underlying investigation.
Failing to preserve documents can lead to severe consequences. If the SEC determines that relevant materials have been lost or destroyed, it can file an enforcement action to obtain punitive sanctions. The SEC may also draw negative inferences and assume that the destroyed evidence was unfavorable. The SEC can also refer the matter to the Department of Justice for criminal prosecution.
Steps in the Document Preservation Process
The document preservation process involves several key steps that must be taken promptly and diligently to meet legal obligations and protect the client’s interests.
- Issuing a Litigation Hold: The first step is to issue a litigation hold. This is a formal notification to all relevant employees, contractors, and third parties. It instructs them to preserve documents, ESI, and tangible items that may be relevant to the SEC’s investigation. The hold should be broad in scope. It should cover all types of data, including emails, text messages, instant messaging app logs, and audio recordings. The hold should also apply to all devices, including personal devices used for work purposes.
- Identifying Custodians: The next step is to identify all individuals who may possess relevant information. This includes not only key executives and employees, it also includes lower-level workers, contractors, and third-party vendors. It is important to cast a wide net and keep the scope broad to avoid missing any potential sources of evidence.
- Suspending Routine Deletion Policies: Many companies have routine data deletion policies, such as auto-deleting emails after a certain period. These policies must be immediately suspended once a litigation hold is in place. All relevant data must be preserved, regardless of the company’s normal retention schedule.
- Coordinating with IT and Business Teams: Implementing a litigation hold requires close coordination between legal, IT, and business teams. IT must identify all relevant data sources, ensure data is not deleted or altered, and collect data in a forensically sound manner. Business teams must also ensure that relevant paper files and other physical materials are preserved.
- Monitoring Compliance: The company must actively monitor compliance after the litigation hold is issued. This includes conducting periodic audits, checking with custodians, and providing follow-up training as needed. Any issues or violations must be addressed promptly and documented.
- Documenting Preservation Efforts: It is important to document every step of the preservation process. This includes the litigation hold, identification of custodians, suspension of deletion policies, and collection of data. Detailed records will demonstrate good faith and compliance if preservation efforts are challenged.
Challenges in Document Preservation
Preserving documents is a complex and challenging process, particularly in today’s digital age. Some of the key challenges include:
- Volume of Data: The sheer volume of data that must be preserved can be overwhelming. Companies generate vast amounts of electronic information daily, making it difficult to identify and segregate relevant materials.
- Multiple Data Sources: Data is often spread across multiple systems, devices, and platforms. This includes on-premises servers, cloud storage, employee laptops, smartphones, and messaging apps. Identifying and collecting data from all these sources requires a coordinated effort.
- Personal Devices and BYOD: Many companies have Bring Your Own Device (BYOD) policies that allow employees to use personal devices for work. These devices may contain relevant data that must be preserved, creating additional challenges in accessing and securing the information.
- Continuous Data Generation: Data is continuously generated and modified, making it difficult to capture and preserve everything in real time. Companies must develop effective strategies to “freeze” data at a certain point to ensure nothing is missed.
- Employee Turnover: The departure of employees can create significant preservation challenges. Companies must have plans in place to secure data from departing employees and ensure that their information is not lost or deleted.
Defending Against Allegations of Spoliation
If the SEC alleges that a company failed to preserve relevant documents, it is critical to mount a strong defense. The company must be able to demonstrate that it took reasonable steps to identify, preserve, and collect all relevant materials. This includes providing detailed documentation of the litigation hold process. This also includes documentation of custodian identification, suspension of deletion policies, and collection efforts.
If documents were lost or destroyed, the company must be able to explain how and why it occurred. This includes providing evidence that the loss was not intentional and that reasonable steps were taken to prevent it. The company may also need to argue that the lost documents were not relevant or that the SEC has not been prejudiced by their absence.
Spodek Law Group Can Guide Clients Through the Document Preservation Process
Document preservation is a critical part of responding to an SEC subpoena or informal request. Companies must take immediate action to implement litigation holds, identify relevant custodians, suspend deletion policies, and collect data in a defensible manner. Failing to preserve documents can lead to severe consequences, including negative inferences, punitive sanctions, and criminal charges.
At Spodek Law Group, we have extensive experience guiding clients through the document preservation process and defending against allegations of spoliation. Our legal team of former DOJ prosecutors and SEC enforcement attorneys can help you navigate this complex and challenging process, minimize risks, and protect your interests.
