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The Battle over the Scope of Rule 17(c) Subpoenas<br><font size="-1"><b><i>Part One of a Two-Part Article</b></i></font>
White-collar prosecutions often turn on the paper trail. The government and the defense may agree on what business transactions took place, but disagree as to whether the defendant acted with a culpable state of mind. The often voluminous emails, memoranda, invoices, accounting entries and other business records that explain why relevant transactions took place, and give context to the defendant's actions, therefore are critical to both the prosecution's case and the defendant's ability to mount a defense.
But the playing field is not level — not even close. Whereas the government has virtually unlimited access to business records during a grand jury investigation, which it can put before the jury at trial, the only means by which a white-collar defendant can require the production of business records from a non-party is through a subpoena under Rule 17(c) of the Federal Rules of Criminal Procedure. Federal courts, however, have almost uniformly given Rule 17(c) a restrictive interpretation. Under this interpretation, no documents will be produced unless the subpoena seeks documents that are not only admissible in evidence, but also specifically described in the subpoena — no small feat when the documents are not in the defense's possession.
The DOJ's Corporate Enforcement Policy: One Year Later
The DOJ's Criminal Division issued three declinations since the issuance of the revised CEP a year ago. Review of these cases gives insight into DOJ's implementation of the new policy in practice.
The DOJ's New Parameters for Evaluating Corporate Compliance Programs
The parameters set forth in the DOJ's memorandum have implications not only for the government's evaluation of compliance programs in the context of criminal charging decisions, but also for how defense counsel structure their conference-room advocacy seeking declinations or lesser sanctions in both criminal and civil investigations.
Use of Deferred Prosecution Agreements In White Collar Investigations
This article discusses the practical and policy reasons for the use of DPAs and NPAs in white-collar criminal investigations, and considers the NDAA's new reporting provision and its relationship with other efforts to enhance transparency in DOJ decision-making.
A Lawyer's System for Active Reading
Active reading comprises many daily tasks lawyers engage in, including highlighting, annotating, note taking, comparing and searching texts. It demands more than flipping or turning pages.
Bankruptcy Sales: Finding a Diamond In the Rough
There is no efficient market for the sale of bankruptcy assets. Inefficient markets yield a transactional drag, potentially dampening the ability of debtors and trustees to maximize value for creditors. This article identifies ways in which investors may more easily discover bankruptcy asset sales.