Imagine you are a new compliance officer at a small financial services firm. You have just been handed a subpoena and asked to produce the required information within the next two weeks. Where do you begin?
1. Keep attorney-client privilege in mind
First things first, ensure all communications regarding the requested information are shared between you and the attorney assigned to the case, only. Maintaining attorney-client privilege on such matters is critical. You may need advice on exact search terms and other parameters, but you don’t want to create yet another series of communications that can be requested by opposing counsel.
Keeping your communications strictly between you and the attorney handling the case for your firm will help preserve that privilege. Do not copy anyone else on these communications and follow your attorney’s instructions carefully.
2. List out what you’ll need to fulfill the request
Second, write down a list of the pertinent information related to the requested communications:
- What types of communications are being requested?
Are they asking for emails, text messages, meeting notes or something else? The appropriate list should be in the subpoena — provide only what is requested. If the subpoena isn’t specific enough to cover the types of communications your firm retains, reach out to your attorney for instructions. They may need to request more information from opposing counsel (do not do this yourself).
- What’s the date range?
Be specific and provide communications that fall in that date range only. If a range isn’t specified, ask your attorney for a clear date range.
- Who are the interested parties?
Are you looking for communications between client and rep only? Rep and Supervisor? Supervisor and Compliance Officer? Make sure you have current contact information for everyone included. If names are not provided, you may have difficulty in determining who the correct parties are. In this case, it’s a good idea to reach out to your attorney.
- What are some relevant search terms to keep in mind?
Make a list and have it approved by your attorney. This list may consist of single words, phrases, account numbers, or any number of combinations relevant to the case. You may also encounter others as you search. Use care in adding new search terms and always work with your attorney (are you seeing a theme here?) to have terms approved.
3. Use your archiving technology to gather information
Once you’ve identified all the necessary pieces, you can begin to fulfill this request.
Your firm should have an email retention system that can archive and locate all of the communications you need. However, most people use other tools beyond email to stay connected at work. Your archiving solution must also be able to retain communications data from newer channels (e.g., mobile applications, collaboration and conferencing tools, social media, etc.) to fulfill a subpoena.
It must also be searchable by the parameters we listed earlier. For example, you should be able to pull communications data from a specific date range and perform searches using the email addresses of the parties involved.
4. Narrow your search to only applicable information
An ideal retention system will have all message types for each person linked to their individual work email addresses so you can find all their communications data at once. If not, you will have to perform searches for each identifier that a person named in the subpoena might have. For example, if five people are named in the subpoena, it would be a lot of work to search each of those people by their:
- Work email
- Personal email (if your firm allows)
- Text messages
- Individual and group chat messages
- Files shared on collaboration platforms
The list can go on depending on your firm’s communication policies and which tools are allowed for business use.
Periodically check to see how many messages you’ve returned throughout the process. This will help you track progress narrowing down your search and let you know if you haven’t obtained what you’re seeking. You can do this after entering each email address and then again after adding your key search terms.
Once you’ve entered date ranges and email addresses, you can begin adding key search terms to refine your results. Names can help here, but account numbers should be more precise. Most emails related to a customer account will include an account number to avoid confusion with another customer who may have a similar name.
5. Double-check your work
Check again to see how many communications your search has returned. You may have thousands, or you may only have two or three.
Scan through the communications to ensure you are pulling the correct information. You do not want to include Jane Smith’s email in a search for information regarding Janice Smith. You also don’t want to pull in spam or marketing emails. There will probably be a lot of communications to deliver to your attorney at this point. Make sure to refine your data as much as possible, but do not eliminate responsive information.
6. Deliver records to the requester
Once you have narrowed down the appropriate responses to the request, it’s time to package and deliver the messages to your attorney. Ideally, your archiving technology would allow you to save the required information in a digital folder or case file that can be easily accessed or amended later. Depending on your organization’s systems and policies, you can give the attorney viewing permission or export the information to a hard drive or disc and mail it to them.
It’s recommended to keep this file of information only until you are told it is no longer needed. If any messages are set to expire based on previously determined retention periods (typically related to regulatory requirements), make sure you have a plan to save them for the duration of the lawsuit. This is very important because lawsuits can take years to finalize.
Another recommendation is to add secondary reviewers to this case file for continuity and security. If you are promoted or leave your position, an approved reviewer can step in to maintain the integrity of the information.
Just remember, don’t panic, and take it one step at a time. By following these recommendations, and with the support of a technology solution designed to capture and archive the latest communications data, you’ll have what you need to fulfill subpoenas quickly and comprehensively.
Author: Cheryl Ritchey
About the author
Cheryl Ritchey retired in June 2020 after 39 years in banking. The last 20 years of her career was spent in Securities Compliance as a Compliance Group Manager for BBVA Securities Inc. Her responsibilities included managing the department that assisted over 1,300 registered representatives, housed in over 670 branches, in maintaining their licensing and registration in compliance with state and federal requirements. Holding her securities principal’s registration, she provided compliance support for that group of representatives in communications, continuing education and regulatory changes requiring action by those representatives. Cheryl has enjoyed working with Smarsh on many projects for well over a decade.
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