Criminal Law

Michael A. Scotto

Q: I received a grand jury subpoena seeking payroll records from my company. I don’t know why the government would be interested in my payroll as I’ve done nothing wrong. The subpoena is captioned John Doe. How should I respond?

A: First, while you may have done nothing wrong, it is never a bad idea to consult with an attorney before responding to a grand jury subpoena. Indeed, in my experience those who haven’t done anything wrong are those who need an attorney more. Your attorney will be able to discuss the matter with the prosecutor and determine why you’ve been subpoenaed—if they consider you a witness, subject or target of the grand jury’s investigation—and coordinate a response to the subpoena. If the prosecutor does consider you a subject, or, worse, a target of the investigation (federal prosecutors are required to inform you of this, state prosecutors are not) your attorney can attempt to extricate you from this situation as early as possible.

The subpoenas reference to a John Doe, rather than an individual’s name, is simply a way to keep the nature of the investigation secret. These sorts of grand jury investigations are usually performed prior to an arrest being made which is again why the subpoena refers to a “John Doe” and not an actual name.

Under both New York State and Federal Law, a grand jury investigation can be rather broad and a prosecutor may be seeking evidence of criminal activity relating to your employees or even your company. Compliance with a grand jury subpoena is required absent a claim of privilege. Any attorney well versed in government investigations would be able to give you a better idea of whether any possible privileges applied and discuss the procedurally rules which depending on whether the subpoena was issued by a State or Federal Grand Jury can be significantly different.
The one thing you should absolutely do, regardless of whether you obtain counsel or not, is make sure that you preserve any documents that the subpoena orders you to produce so as to avoid a possible claim that you destroyed evidence that the grand jury subpoena was seeking.