common investigative tools
this pretrial tool to produce information can't really be refused
grand jury subpoena to produce records
the requirements of a grand jury subpoena
1. must be reasonable - particularity + not overbroad
2. not oppressive - not a fishing expedition + not onerous
5A only protects this type of evidence; 5A doesnt protect this other type of evidence
protects production of testimony
doesnt protect physical characteristics or facts
how widely is atty client privilege construed?
the privilege is narrowly construed
it doesn't protect underlying facts or what is discovered
a forthwith subpoena
demands immediate production of documents, records, or testimony when you think someone is going to flee
safe harbor provision grants immunity or at least lowers the punishment for wcc
if you discover an employee is acting illegally + report that, then the company will get deferred or nonprosecution agreement
what are an employee/agent's rights when answering a subpoena for corp documents
they have no right or reason to refuse a subpoena for corp docs
- unless the agent is individually charged (in that case, it triggers personal 5A protections)
the upjohn warning says this to employees
we are talking because your employer said you have to. I’m your employer’s attorney not yours. What you say to me isn’t protected
there is no right to an attorney when answering this subpoena
subpoena to testify in front of a grand jury
this is how a subpoena is different from a warrant
a subpoena lacks probable cause, forcibly compels info, and presumes guilt if refused
warrants must have probable cause
foregone conclusion exception rule
if I’m not relying on you to produce this document, meaning that someone else can produce the document, then the information within the documents is not privileged
these employees are the protected client; identify issues with the protected group
the control group = the group in control of the org
its difficult to determine who is considered to be "in control" --> we dont exactly know if its just the presidents, the C suite too, or also the managers
required records exception
if the govt requires record keeping and maintenance of certain documents, there is no privacy interest in those records
this tool (to find evidence of a crime) is not limited to real people
search warrants
these are the three requirements to violate 5A
1. must be compelled to speak
2. speech is incriminating
3. speech and not a readily observable fact
elements of attorney client privilege
1. someone seeks atty to begin legal relationship
2. seeking legal advice
3. communications with atty
4. intended to be confidential
5. confidential info not otherwise shared by client
these are the two ways to quash a grand jury subpoena
1. overbroad - asking more than is material to the criminal issue
2. oppressive to comply with the request
a subpoenaed document testifies to these details
the documents sought do exist, these are my documents to give up, these docs are authentic, and these docs are responsive + material to your investigation