The First Forty-Eight Hours After a Federal Subpoena Lands — A Checklist for In-House Counsel

When a federal grand jury subpoena, SEC document request, or agency administrative demand lands at a company's headquarters, the first forty-eight hours set the posture for everything that follows. The instincts that serve in-house counsel well on routine commercial litigation do not translate cleanly to a criminal or regulatory investigation, and the most common early mistakes are ones that cannot be fully unwound. This is a checklist from ten-plus years of taking those calls, usually on a Friday afternoon.

Hour zero to hour one: do not react in writing

The first instinct — especially if the subpoena is narrowly drawn and the underlying conduct feels clearly defensible — is to respond. Send a letter confirming receipt. Assign an associate to gather documents. Call the AUSA and ask what this is about.

Do none of those things in the first hour.

A federal subpoena is not a civil discovery request, and the responses counsel might send as a matter of course in civil litigation can create a documented position that the company cannot easily walk back. Before anything is written or said externally, the company needs to determine three things: who issued the subpoena (grand jury, SEC, FTC, DOJ Antitrust, another agency), what conduct is being investigated (often not obvious from the subpoena face), and whether the company is a target, subject, or witness. The answer to the third question changes everything downstream.

Hour one to hour six: the preservation hold and the targeted hold

The second thing — and this one is urgent — is a preservation hold, followed within a few hours by a more targeted hold tailored to the subpoena.

The preservation hold needs to go out immediately to a broad group. Over-inclusion is the right failure mode. It should suspend all automatic destruction of email, chat, voicemail, backup tapes, physical files, and any automated document-disposal processes for any person or function that could plausibly have touched the subject matter. It should be short, explicit, and documented.

The targeted hold — the one that actually gets sent to the specific custodians whose documents the subpoena reaches — should be drafted in consultation with outside counsel after initial review of the subpoena's scope. Do not conflate the two. A targeted hold sent in the first hour, before scope review, is how over-narrow hold lists happen and how spoliation claims later happen.

Hour six to hour twenty-four: retention, privilege, and the initial conversation

At some point in the first day, the company needs to retain outside counsel with specific criminal or regulatory experience. If the general counsel does not have a standing relationship with that kind of counsel, this is the moment the relationship gets built — and the decision needs to be made carefully because the conflicts-checking process will take some hours itself.

Two specific considerations:

First, the question of whether the company and any individual employees need separate counsel arises almost immediately. It is very common for the first call from outside counsel — after reviewing the subpoena and the initial factual picture — to be a recommendation that one or more employees need their own lawyer. The company cannot be both an advocate for the individual employee and a provider of indemnified defense counsel without running into conflicts that will poison a joint defense arrangement later. Figure this out early.

Second, the privilege question. Any internal investigation undertaken in response to the subpoena needs to be structured from the beginning to preserve attorney-client privilege and work-product protection. That means outside counsel directing the investigation (not the general counsel or an internal audit team), written engagement letters making the structure explicit, and interviews conducted with Upjohn warnings and contemporaneous memoranda. The 2022 decision in In re Grand Jury, 598 U.S. 1, did not help on the dual-purpose privilege question, and the current doctrinal uncertainty makes up-front privilege structure more important, not less.

Hour twenty-four to hour forty-eight: the first government contact

By the 24-hour mark the company typically has outside counsel in place, a preservation hold out, and a preliminary factual picture. This is usually when the first substantive contact with the government happens — typically outside counsel to the AUSA or agency staff attorney, by phone, on background.

That first call is diagnostic, not substantive. The goal is to understand the government's posture (target, subject, witness), the investigation's scope and timeline, and whether there is an active grand jury. Outside counsel should not be making factual representations in that call beyond what is strictly necessary to move the conversation forward. The posture that comes out of that first call will determine whether the matter becomes a cooperating-witness document production or a years-long defense engagement.

Hour forty-eight onward: the strategic questions

By the end of the second day, the leadership team should be positioned to decide three strategic questions: whether to cooperate, whether to undertake a broader internal investigation, and whether to make voluntary disclosures to the government or other regulators.

None of those decisions should be made in the first forty-eight hours. The temptation — especially from boards who have been briefed on the subpoena and want action — is to resolve these questions quickly. Resist. Cooperation decisions made on Day 2 often look different by Day 30, and premature disclosures constrain strategic options that cannot be restored.

A final note on culture

One thing I have learned from doing this work for Hartford-area public companies: the first forty-eight hours are culturally difficult. The natural organizational impulse is to treat a subpoena as a problem to solve quickly. Board members want an update, the CEO wants a timeline, communications wants a statement, and the legal team is under pressure to produce action items. The right move is usually to slow the internal pace of activity while accelerating the specific, time-critical tasks outlined above. Confusing the two is the single most common reason these matters go badly in their first week.

For companies in the first forty-eight hours of a federal subpoena or agency demand, the Litigation group maintains a twenty-four-hour contact protocol for existing clients and responds to new-matter inquiries within two hours during business hours and four hours outside them.