Subpoena Program Frequently Asked Questions
Who may request a DoD Inspector General subpoena?
Any agent of the Defense Criminal Investigative Service (DCIS), the Army Criminal Investigation Command (CID), the Naval Criminal Investigative Service (NCIS), or the Air Force Office of Special Investigations (OSI). Requests from other DoD investigators and law enforcement officials will be entertained on a case-by-case basis. We generally expect members of military police organizations to work through CID, NCIS, and OSI. Contact the subpoena program manager if you have any questions. DCIS agents should contact their applicable headquarters program manager.
What are the benefits of using a DoD OIG subpoena?
There are several. First, a subpoena is enforceable. If the recipient fails to comply, a court order may be sought to compel compliance. Second, administrative subpoenas, unlike grand jury subpoenas, are useful to support civil and administrative remedies as well as criminal prosecution. The secrecy requirements associated with grand jury subpoenas generally limit their applicability to criminal prosecution.
How do I request a DoD OIG subpoena?
If you are an agent of a Defense criminal investigative organization, simply e-mail a subpoena request and the associated supporting documentation to the DoD OIG Subpoena Program Manager at email@example.com. DCIS agents send requests to the Investigative Operation Directorate at DCIS Headquarters. If you would like to discuss your needs before compiling your request, simply call the program manager. We’ll gladly discuss your case with you and determine whether a subpoena can be issued, and how the request should be structured.
My subpoena recipient needs more time to comply. What should I do?
If you believe the recipient is making a good faith effort to compile the requested records and simply needs more time, you may grant a reasonable extension to the due date. Please attempt to get all such time extensions in writing. If it begins to appear like the recipient does not intend to properly comply, contact the subpoena program manager.
Do I have to serve a subpoena in person?
Subpoenas may be served in person or by registered or certified mail with a return receipt. You may also serve a subpoena via fax, provided the recipient agrees in advance.
What are the requirements for issuing subpoenas for financial records?
Generally speaking, the Right to Financial Privacy Act (RFPA) requires you to notify a customer before you access his bank records. Remember that the RFPA only applies to individuals or partnerships of five or fewer, and to records held by a “financial institution” as defined in the RFPA (generally, banks, credit unions, and credit card issuers). When requesting financial institution subpoenas, you must include all of the required notification documents so the DoD OIG can review them. When you receive the subpoena, do not serve it. You must first serve the notification documents on the account holder and wait 10 days if you notified him in person, or 14 days if you notified him via return-receipt mail. Regardless of whether or not he sent you a certificate of service, check with the applicable clerks of court to determine if he filed a motion to challenge the subpoena. If he did, contact the DoD OIG program manager. If he did not, you may then serve the subpoena on the financial institution along with a certificate certifying that you complied with the RFPA (certificate of compliance).
How long will it take to get my subpoena?
We’re glad you asked that question! We have specific goals for timeliness in subpoena processing, and pride ourselves in being responsive to our customers. Our current goal is 15 calendar days from the date you submit a complete request. Many times requests will be processed more quickly; a few have been completed in three days or less. The key is to include all relevant information in your subpoena request. Most delays are caused by incomplete requests. We don’t “start our clock” until we have complete answers to each of the interrogatories and all of the required documents.
What if the recipient of my subpoena refuses to comply?
Contact the subpoena program manager. DoD OIG representatives will get additional information from you and coordinate with the Department of Justice (Main Justice in Washington, D.C.) to get the subpoena enforced. Usually the legwork falls back on the Assistant United States Attorney assigned to the case. The DoJ attorney will file the appropriate documents in Federal District Court to obtain a judicial order that will be directed to the recipient requiring compliance. Failure to comply with the order constitutes contempt of court for which the subpoena recipient may be criminally punished.
What is the legal authority for issuing an IG subpoena?
The Inspector General Act of 1978 as amended.
Do I serve the original subpoena, or a copy?
Serve a copy. The original goes in your case file for retention with the rest of your case-related documents. Complete the certificate of service on the reverse side of the subpoena and fax or otherwise provide that information to the subpoena program manager. You may also serve the subpoena via fax, provided the recipient agrees in advance.
What if I get a bill from a bank for costs associated with producing the required records?
The Right to Financial Privacy Act provides for the reimbursement of financial institutions for their research and copy costs. Rates are set in the Code of Federal Regulations. If you receive a bill, forward it to the DoD OIG subpoena program manager for processing and reimbursement.
Do I have to notify a bank customer before serving a subpoena on his bank?
Yes, however, there is a provision in the Right to Financial Privacy Act (RFPA) that authorizes delays in notification. Review the provisions of 12 U.S.C. 3409 to see if your circumstances warrant a delay.
I just want to know whether or not the suspect in my case has an account at a particular bank. Do I need a subpoena for that?
No. 12 U.S.C. 3413 authorizes financial institutions to release the following information, without a subpoena, pursuant to a legitimate law enforcement inquiry: name, address, account number, and type of account. Sometimes bank representatives are not familiar with that provision of the law; an explanation might be necessary as well as contact with the bank’s attorney.
Must the subpoena recipient deliver the records to me in person, or can I have them mail the records to me?
While the recipient is required to deliver the records in person, you may allow the recipient to mail the requested records. You should address this issue in the subpoena cover letter. Make sure you have the recipient sign a certificate of compliance indicating that all of the requested documents were provided.
Is the DoD OIG subpoena only good for documents?
Yes. IG subpoenas cannot compel testimony.
What if the recipient of my subpoena wants to bill me for their time and expenses incurred in complying with the subpoena I served?
Unless the recipient is a financial institution (under the Right to Financial Privacy Act) or a custodian of electronic communication records (Electronic Communications Privacy Act), there is no provision in law for reimbursement, and the Inspector General will not do so. If your recipient is persistent, direct him to the DoD OIG Subpoena Program Manager.
Can I compel the recipient to sign a certificate of compliance?
Yes. Failure to certify can be taken as a failure to comply.
If I need more than one subpoena in the same case, do I need to send separate request memos for each one?
No, just send one. Be sure to separately identify each intended recipient though.
What if I need bank records and my case falls outside the scope of the Inspector General Act?
The Right to Financial Privacy Act has a provision for obtaining records when no subpoena authority exists. See 12 U.S.C. §3408.
I’m working a case jointly with the FBI and the Department of Transportation Inspector General. Can I use an IG subpoena to cover all of our needs, or do we each have to get separate subpoenas?
A DoD OIG subpoena may only be used for records that have some DoD nexus. If the records sought satisfy both your needs and the needs of the FBI or DoT, then they may be shared. Otherwise, documents peculiar to the needs of FBI or DoT must be obtained under their authorities.
I need to obtain documents that we are confident are stored in a cabinet of the controller’s office for the company we are investigating; however, I need the records within the next two days before he returns from vacation. Can I get a subpoena that quickly?
While we have issued subpoenas in as little as two days, your situation seems to call for a search warrant rather than a subpoena, provided you have probable cause.
Which documents do I forward to the IG when requesting a subpoena?
See the table at the bottom of our sample subpoena request memorandum.
What if a subpoena recipient fails to comply?
In any case in which a subject fails to respond properly to a subpoena, the subpoena will be judicially enforced by the DoD OIG Office of General Counsel (OGC) unless 1) the subpoena was improperly served, 2) the subpoena was altered or in some other way voided, 3) its approval and signature were based on erroneous information, or 4) events which have transpired after the subpoena's approval have changed circumstances to an extent that makes enforcement inappropriate. In a MCIO case requiring enforcement, the subpoena and a request for enforcement will be sent via email to the Subpoena Program Manager, Investigative Policy and Oversight, DoD OIG, with a copy to DoD OIG/OGC. The designated OGC attorney will assist the Investigator in preparing an affidavit to be filed in a District Court proceeding.
Should a DoD OIG subpoena be challenged in court, notifications should generally come from case agents who will submit information to the OGC concerning subpoena challenges either through DCIS Headquarters if it is a DCIS subpoena; or Subpoena Program Manager, Investigative Policy and Oversight (IPO) if it is a MCIO subpoena. The following facts or documents must be reported to OGC and the Deputy Assistant IG, IPO:
a. Detailed information outlining noncompliance, lack of compliance, or partial compliance;
b. Copies of all correspondence related to subpoena compliance and/or notes of telephone conversations;
c. Synopsis detailing efforts to obtain compliance (i.e., telephone calls, discussions, extensions, etc.); and
d. Synopsis of investigative efforts to date.