Client alert · Enforcement
When the government calls: a board playbook for the first 72 hours after a subpoena
· 6-minute read · By Eleanor C. Hayes & Priya Raghavan
Most enforcement outcomes are determined before the first substantive conversation with the government. They are determined by what the company does in the first 72 hours: what it preserves, who it tells, which mistakes it makes in the fog. Having sat on the government's side of these files, we can report that investigators form durable first impressions from exactly these mechanics.
Hour zero: preservation, immediately and in writing
A litigation hold must go out the day the subpoena arrives — before scope discussions, before the board meeting, before anyone 'tidies' a file share. The hold should suspend auto-deletion across email, chat, and collaboration platforms; ephemeral-messaging apps deserve explicit mention because regulators now ask about them explicitly. The most defensible companies can later show a timestamped hold, an identified custodian list, and an IT confirmation that deletion was actually suspended — not merely requested.
Day one: decide who speaks for the company
Separate three roles that boards habitually blur: counsel for the company, counsel for individuals, and the internal point of contact. Employees should hear promptly, in plain language, that the company is cooperating, that they must preserve documents, and that they are free to speak to the government but entitled to counsel. Scripting that message badly — or letting managers improvise it — creates obstruction exposure out of thin air.
Day two: scope the universe before promising it
The reflex to promise the government everything, fast, is almost as damaging as stonewalling. Accept service graciously, open a dialogue about scope and timing, and commit only to what the company can actually deliver. Every missed production deadline is a withdrawal from the credibility account the company will need at the end of the investigation.
Day three: brief the board on posture, not predictions
Boards want to know how it ends. In hour 72, no one knows, and counsel who pretend otherwise cost themselves credibility later. The useful day-three briefing covers posture: what was demanded, what has been preserved, who is represented, what the disclosure obligations are, and what decision points are coming. Prediction can wait; process cannot.
The takeaways
- 01 Issue a written litigation hold on day zero — and confirm deletion is actually suspended.
- 02 Address ephemeral messaging explicitly; regulators will.
- 03 Separate company counsel, individual counsel, and internal communications from the start.
- 04 Negotiate scope honestly and never miss a production date you set yourself.
- 05 Brief the board on process and decision points, not premature predictions.
This alert is general information from a fictional firm on a sample site — not legal advice — and reading it creates no attorney–client relationship.