How to Respond to a Federal Grand Jury Subpoena

How to Respond to a Federal Grand Jury Subpoena

The certified letter arrived today. Federal grand jury subpoena. You’re ordered to produce documents or appear to testify in 14 days. You don’t know if you’re a target of the investigation or just a witness. You don’t know whether complying will incriminate you or refusing will land you in jail for contempt. Your instinct might be to ignore it, or to immediately hand over everything requested, or to call the prosecutor’s office and try to explain why this is all a misunderstanding. All three responses can destroy your legal position before you’ve even consulted with counsel. Here’s what actually happens when you receive a grand jury subpoena, why you have roughly 48 hours to make critical decisions, and when Fifth Amendment protections apply – and when they catastrophically don’t.

Thanks for visiting Spodek Law Group. We’re a second-generation law firm managed by Todd Spodek, with over 40 years of combined experience representing individuals and corporations responding to federal grand jury subpoenas and defending clients in white-collar prosecutions. Federal grand jury subpoenas are compulsory legal orders – ignoring them triggers contempt proceedings that can result in immediate jailing, but complying without legal strategy can provide prosecutors with evidence they’ll use to indict you. The challenge: you must respond, but “respond” doesn’t necessarily mean “comply fully.” Here’s how to navigate grand jury subpoena response, what contempt actually costs you, and why the distinction between individual and corporate subpoena recipients determines whether Fifth Amendment protection exists at all.

What Happens If You Ignore It

No. Ignoring a federal grand jury subpoena triggers contempt of court proceedings under Rule 17(g) of the Federal Rules of Criminal Procedure. Contempt comes in two forms: civil and criminal. Civil contempt is coercive – the court jails you until you comply with the subpoena or until the grand jury’s term expires, whichever comes first. If the grand jury has four months left in its term and you refuse to comply, you can sit in jail for four months. Criminal contempt is punitive – under 18 U.S.C. § 401, criminal contempt carries up to six months in jail plus fines.

There’s no “I didn’t understand it was serious” defense. Service via certified mail constitutes legal notice. Prosecutors can proceed with contempt motions if you fail to appear or produce documents by the specified date, and courts grant those motions routinely when there’s no legal justification for non-compliance.

But here’s the critical distinction: you must respond to the subpoena, but “respond” doesn’t always mean “comply fully with every demand.” Responding can include appearing at the specified time and asserting Fifth Amendment rights, or producing a privilege log identifying documents you’re withholding, or filing a motion to quash if the subpoena is overly broad. What you cannot do is ignore it entirely.

The First 48 Hours Matter

You typically have 14 days from service to the compliance date. The first 48 hours are critical because decisions you make – or fail to make – during that window can irreversibly affect your legal exposure. The documents you produce or testimony you provide shapes whether you remain a witness or become a target. Once you’ve handed over documents or testified, you can’t un-ring that bell.

This is why immediate legal consultation matters. What can counsel do in those first 48 hours? First, assess whether you’re a target, subject, or witness. Second, begin negotiating with prosecutors – scope reductions (narrowing categories of documents), timing extensions (more time to review and produce), and format specifications. Third, evaluate whether proffer agreements or immunity make sense. If you’re clearly a witness with no criminal exposure, a proffer agreement allows you to meet with prosecutors and potentially provide information without forcing you into the grand jury. If you have limited exposure but valuable information about larger targets, testimonial immunity might be negotiable.

The 48-hour window also matters for document review. Counsel needs time to review documents for privilege, identify potentially incriminating material, and assess whether act of production privilege applies. Waiting until day 13 eliminates your ability to conduct this review and negotiate from a position of knowledge rather than panic.

Fifth Amendment: Individual vs. Corporate

Whether you can assert Fifth Amendment protection depends entirely on whether you’re an individual or a corporate custodian. For individuals, Fifth Amendment protection exists for testimony – you can refuse to answer questions that would incriminate you. Document production is more complicated. The contents of pre-existing documents generally aren’t protected by the Fifth Amendment. However, the act of producing documents can be protected under the “act of production” doctrine when producing them would itself be incriminating. Act of production doctrine recognizes that producing documents communicates three things: the documents exist, you possess them, and you believe the documents produced are the ones requested. If admitting any of these would incriminate you, you can assert act of production privilege. Prosecutors must then prove these elements as a “foregone conclusion” before they can compel production. But if you’re a corporate custodian – an officer, director, or employee served with a subpoena for corporate documents in your capacity as records keeper – Fifth Amendment protection evaporates entirely. In Braswell v. United States, 487 U.S. 99 (1988), the Supreme Court held that corporate custodians have no Fifth Amendment privilege to refuse production of corporate records, even when producing those records would personally incriminate the custodian. The Court’s reasoning: corporations have no Fifth Amendment rights under the “collective entity doctrine,” and custodians act as representatives of the corporation, not as individuals. When you produce corporate records, you’re acting in a representative capacity. The fact that the records might later be used to prosecute you personally is irrelevant – you must produce them. This creates a brutal trap for corporate executives. You’re served with a subpoena for corporate documents that you know will incriminate you. Your instinct is to assert Fifth Amendment rights. But Braswell eliminates that option – if you refuse, you’ll be held in contempt and jailed until you comply. Compliance isn’t binary – it’s not “give them everything immediately” or “refuse everything and go to jail.” Strategic compliance means responding in ways that satisfy legal obligations while protecting your interests. Experienced counsel negotiates scope (narrowing overly broad requests), timing (extending compliance deadlines for privilege review), and format (electronic vs. paper, privilege logs describing withheld documents). These negotiations happen between counsel and prosecutors before the compliance date. The goal isn’t to avoid compliance – that’s impossible – but to ensure that compliance doesn’t inadvertently waive privileges, produce irrelevant material, or hand over documents in a format that makes them more useful to prosecutors than necessary. Strategic compliance also means understanding when cooperation helps you and when assertion of rights protects you. If you’re clearly a witness with no criminal exposure – you observed conduct but didn’t participate – cooperation often serves your interests. But if you have potential exposure – you participated in conduct that might have been illegal – assertion of privileges protects you from providing evidence prosecutors will use to indict you. Grand jury subpoenas create constitutional tension: the government’s power to compel evidence conflicts with individuals’ Fifth Amendment protection against self-incrimination. The resolution is imperfect – individuals can invoke Fifth Amendment protection for testimony but face contempt if courts find the invocation isn’t justified. Corporations and corporate custodians get no Fifth Amendment protection at all. Immunity solves the problem when prosecutors grant it, but immunity isn’t automatic – prosecutors grant it strategically.

At Spodek Law Group – we’ve represented individuals and corporations responding to federal grand jury subpoenas, negotiated scope reductions and immunity agreements, and defended clients in contempt proceedings when assertion of privileges was strategically necessary. The worst outcomes result from recipients who ignored subpoenas or who complied immediately without legal review, handing prosecutors evidence that became the centerpiece of indictments. If you’ve received a federal grand jury subpoena, contact us at 212-300-5196 within 48 hours. The decisions you make in the first two days after service can determine whether you remain a witness, become a target, or face contempt proceedings that land you in jail while you’re still trying to figure out what you’re even being investigated for.