Responding To New York Attorney General Investigative Subpoenas
An investigative subpoena served by the New York Attorney General warrants the same authority and care that a subpoena from a civil lawsuit would require. As with any subpoena, an individual’s legal counsel should first ensure that their client has a sufficient hold on potentially responsive electronic and physical documents. In addition, legal counsel should contact the attorney at the New York Attorney General’s Office and gather information about the investigation that prompted the subpoena and why their client received it. Legal counsel should also seek to clarify any ambiguous requests narrow requests that suffer from over-breadth, and seek an appropriate extension of any deadline in the subpoena for production of responsive documents.
If efforts to extend a subpoena, or narrow the investigative subpoena are unsuccessful and extend beyond a deadline, the recipient still has options. Counsel should consider pursuing a motion to quash or modify the subpoena pursuant to Rule 2304 of New York’s Civil Practice Law and Rules (CPLR). As with any motion that involves discovery, a motion to quash a subpoena must be followed by an effort in good faith to resolve the issues raised by the subpoena (as required by New York’s local court rules), and the individual rules of many New York judges.
Although New York’s CPLR does not specify a time period in which a motion to quash or modify must be made, this type of motion should be made “at or before the time specified in the subpoena for compliance.”Whether the recipient of the subpoena succeeds in subpoena negotiations or must file a motion to quash, the response to the subpoena must preserve all applicable objections to the subpoena. These objections may include procedural objections to the extent that the subpoena requests, such as attorney-client, work product, or common interest privileges.
If filing a motion is necessary, there are authorities available to push back against the Attorney General’s grip on his reach (which often tends to be expansive). Oftentimes, courts have interpreted the acting AG’s power to be broad, however, the AG must still be able to display that the information that the investigative subpoena seeks out bears a responsible relation to the subject matter under investigation and the public purpose to be achieved by the subpoena. While the courts may be slow and hesitant to strike down a subpoena, the AG does not have the arbitrary discretion to guide the scope of the investigation and may not demand the production of materials irrelevant to a proper inquiry. Under these requirements, the law requires that a factual basis is demonstrated in order to justify and support a subpoena, but does not need to reach the level of probable cause. While muffling an AG’s investigative power may be..limited, it more so displays the fact that no government agency may conduct a limitless general inquisition into the affairs of those within its jurisdiction based solely on the idea that a violation of a law may be discovered.
Even if there is a factual basis for a New York AG’s subpoena to pass through the first set of legal hurdles, it still does not mean that the AG is granted a limitless inquiry. The recipient of the subpoena may challenge the scope of the subpoena if it is still too broad (if the circumstances permit). For example, the New York Court of Appeals pulled regulatory subpoenas that called for all of the recipient's books and records pertaining to the company’s operations. The court found that the subpoena was based on an unlimited notion to examine the business affairs of an enterprise. In the appropriate instances, the courts are advised to narrow subpoenas that are too broad or that are considered “fishing expeditions”.
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