The following is an article written by Gavin Broady for “Law 360” on February 6, 2015. It is a great article that provides keen insight into how not to respond to a subpoena from those who are most likely to take exception to a show of such defiance: none other than DOJ Chiefs themselves. The advice in this article is invaluable.

“Law360, New York (February 05, 2015, 7:24 PM ET) — No lawyer relishes the idea of hearing that their client has been hit with a U.S. Department of Justice subpoena, but failing to have a response plan in place when a government investigation hits can be an invitation for sanctions — or worse.

Hashing out document discovery with a government probe dangling over your client’s head can be stressful, convoluted and costly, and there are plenty of places where the unwary attorney can commit the kind of legal error that will haunt them.

Help is here in the form of DOJ Civil Division e-discovery director Allison Stanton and e-discovery working group chairman John Haried, who offered up a host of insider tips on how to avoid common attorney blunders as part of ALM’s annual LegalTech conference.

Counting on Clawbacks 

Given that complex cases can lead to the handover of millions of documents, it is all but a given that a piece of privileged information will slip through, but attorneys need to know the DOJ is not in the business of granting mulligans to lawyers who have failed to cover their bases and are hoping to negotiate a clawback agreement, Stanton said.

“Sometimes the government will entertain them, sometimes they won’t, but the terms of those clawback agreement are closely looked at because there may be other investigations going on that you don’t know about,” Stanton said. “So in many instances we may not be amenable to having our hands tied in that respect, and making sure that you’re doing your due diligence on the front end and looking at your processes before privilege flies out the door is very important.”

Stanton said the government is becoming more and more specific about how the information accidentally turned over can be clawed back, and is less willing to promise that it will eradicate that info from its system even if they agree it won’t be used in analysis by DOJ lawyers.

Putting Off Document Review

Haried said the DOJ is also tightening the screws on attorneys who are prone to procrastination, noting that the government’s new guidance on dealing with electronically stored information specifically instructs attorneys to examine discovery materials as soon as they are received — a move prompted by one too many lawyers complaining of problems that were only discovered on the eve of trial.

“We know that lawyers are busy, that they are human and they procrastinate in looking at the discovery that they receive,” he said. “We’re trying to solve those problems early, but we’re also trying to create an ethic with judges and magistrate judges are not going to tolerate you coming in 30 days before trial and saying: this disc was corrupted and we don’t have time to look at the discovery.”

“We want judges to stare down lawyers who do that and say: You’ve had it for six months, and if you didn’t do it in month one it’s too late,” he adds.

Failing to Hit the Pause Button

While there may be a debate in legal circles about when reasonable anticipation of litigation kicks in to trigger a litigation hold, Stanton warned that failure to preserve documentation while in the DOJ’s crosshairs could lead to consequences far worse than discovery sanctions.

“There is a statutory obligation that if you or I have entered an investigation or have information that’s subject to investigation, you cannot destroy or impede that investigation by getting rid of information or letting that information disappear,” she said. “So there is an independent reason why you need to make sure you are preserving that information up front, and if you get pushback from your clients I would encourage you to remind them of that statutory basis.”

Haried said that attorneys skeptical of the DOJ’s commitment to bringing prosecution for document destruction under those statutes should think again.

“We’re very serious about prosecuting cases where there is destruction of evidence, because it’s been a problem in the past,” Haried said. “And there’s nothing that a criminal prosecutor likes more in his or her case than some evidence of consciousness of guilt: This target knew they did something wrong, and the reason you can tell they had that mental state is that they went out and destroyed those records. That’s like a nugget of gold for a prosecutor.”