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In investigations and litigation in the U.S., federal agencies often seek information from foreign companies through subpoenas. However, the reach of federal subpoena power overseas is complex and uncertain. This article examines key issues foreign companies face when dealing with federal subpoenas.
A subpoena is a writ ordering a person or company to produce documents, provide testimony, or both, relevant to an investigation or legal proceeding. In U.S. federal cases, subpoenas are issued under authority granted by statutes, regulations, or court rules.
Subpoenas can be issued in criminal investigations, civil litigation, administrative proceedings, congressional investigations, and grand jury proceedings. They are an essential tool for gathering evidence.
U.S. federal agencies and courts can issue subpoenas to foreign companies under certain circumstances. Key principles include:
Foreign companies that do business in the U.S. or with U.S. entities are generally subject to federal subpoena power. However, the analysis is fact-specific.
Foreign companies can challenge subpoenas on several grounds, such as lack of personal jurisdiction, relevance, undue burden, or privileges like attorney-client privilege or bank secrecy laws. Common arguments include:
Motions to quash or modify a subpoena are decided by the issuing court. Success often depends on showing compliance would be unreasonable or create significant hardship.
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Google rating score: 4.9 of 5, based on 736 reviewsIf a foreign company refuses to comply with a subpoena, potential consequences include:
However, contempt sanctions generally cannot be enforced if the recipient remains outside the U.S. Practically speaking, a company with no U.S. assets or need to access U.S. markets may be able to ignore a subpoena without significant repercussions.
Cross-border discovery disputes involving foreign companies often become complex, protracted legal battles. Strategies for navigating cross-border discovery include:
Taking a cooperative approach and demonstrating good faith efforts to produce relevant information can help mitigate conflicts over federal subpoenas.
In recent years, DOJ has issued policies cautioning prosecutors against overly broad requests for foreign-stored data. Key guidelines include:
While these policies are not binding, they signal DOJ’s recognition of sovereignty concerns. Companies can reference these guidelines when negotiating subpoena scope.
MLATs are agreements between countries to obtain and exchange foreign evidence for use in judicial proceedings. The U.S. has MLATs with over 60 countries. Key advantages of MLATs include:
However, the MLAT process can be slow and cumbersome. Agencies often prefer issuing direct subpoenas when possible.
Foreign data privacy laws like the EU GDPR create compliance challenges for responding to U.S. discovery. Companies can face hefty fines for transferring data without authorization. Strategies include:
Foreign blocking statutes also prohibit producing certain types of evidence located overseas. Companies must balance compliance with U.S. discovery orders against violating local laws.
Key takeaways for foreign companies dealing with federal subpoenas include:
When facing federal subpoenas, foreign companies should strive to act in good faith and avoid being perceived as obstructionist. Demonstrating a sincere willingness to cooperate, even if challenging aspects of requests, can help build credibility.
Companies should also explore negotiation, alternative discovery methods like voluntary interviews, and mutual legal assistance treaties (MLATs) as potential mechanisms for resolving disputes. Negotiation can narrow subpoena scope, while MLATs allow information exchange through approved channels.
Making narrow, specific objections to overbroad or unduly burdensome requests is preferable to outright rejecting subpoenas. Blanket non-compliance invites sanctions and reputational damage. Targeted challenges to relevance or scope are more likely to succeed.
Finally, proactively engaging with investigating agencies, understanding the focus of inquiries, and identifying efficient ways to provide relevant information demonstrates cooperation. Finding mutually agreeable solutions reduces conflicts.
While federal subpoena power over foreign companies is expansive, cooperative engagement, negotiation, and narrow objections can help balance investigative needs with sovereignty and compliance concerns.
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