If a company is served with a subpoena, and it in turn emails all of its employees asking for any related documents, does the email carry the same powers as the original subpoena? Jurisdiction: US federal law


No. The e-mail has none of the powers of the subpoena. You may elect to ignore an e-mail from your boss (and get fired) but you may not elect to ignore a subpoena.

We don't have a lot of background here, but the more important question, probably, is the extent to which the employees are obligated to comply with the subpoena itself, and what penalties may apply to employees who refuse.

If a company is served with a subpoena under Rule 45(e), contempt of court is the only sanction, and Rule 45(e) only allows a finding of contempt against "a person who, having been served, fails without adequate excuse to obey the subpoena."

That service of the subpoena is a critical due process prerequisite, so it is not likely to be maneuvered around. So if an employee hasn't been served, my conclusion -- having never seen a case like this -- would be that the employee is not legally bound to comply.


does the email carry the same powers as the original subpoena?

Yes insofar as a non-compliant employee could be sanctioned for obstruction of justice. Employees are not allowed to disregard or to try to evade/overcome the company's email under pretext that they are not individually named in the subpoena.

  • 2
    Could you share some authority for this? I've never seen an obstruction conviction for failing to comply with an employer's e-mail purporting to comply with a subpoena.
    – bdb484
    Jul 5 '18 at 14:05
  • @bdb484 See 18 USC §1512(b) and (c), which sanction whoever corruptly withholds or conceals (or attempts to, or persuades another to conceal) a record with the intent to impair its availability for use in an official proceeding. Whether or not the statute has been enforced in criminal court is a different issue, but the law is there. Also, under agency law "nothing prevents [the employer] from pursuing legal remedies against those of his employees [at fault]", Dark v. U.S., 641 F.2d 805, 807-8, n.4 (1981). Jul 5 '18 at 17:56
  • Not sure I agree. The ordinary sanction for failure to comply with a subpoena is contempt of court in the same case, and not a criminal charge, so obstruction of justice wouldn't be the same in any case. Usually, a subpoena is served upon a particular individual in a company, such as a records custodian or officer of the company, rather than the company itself, precisely to make it more readily enforceable by contempt. Contempt of court can be enforced against certain people with knowledge of the order rather than merely the subject of an order, but a non-compliant employee is a close case.
    – ohwilleke
    Jul 5 '18 at 18:03
  • 1
    @bdb484 You initially asked for "some authority for this" and I provided one: A federal statute which has not been repealed. In the very next sentence (same comment) I also signaled that I don't know whether it has ever been enforced in criminal court. You're evidently smart, so it's odd that most of this "does not make great sense" to you. An employee's culpable state of mind in failing to comply with employer's request for records might be determined or discarded through further discovery and circumstantial evidence, and this could very well be within the purview of 18 USC § 1512. Jul 5 '18 at 19:28
  • 1
    After reading the referenced law, I feel that an obstruction charge might be successfully prosecuted but my question was about a subpoena's powers specifically. Thanks for the additional info though.
    – Mobius
    Jul 9 '18 at 10:14

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