Administrative Subpoena Response Guide

ADMINISTRATIVE SUBPOENA RESPONSE GUIDE — MASSACHUSETTS

1. OVERVIEW OF ADMINISTRATIVE SUBPOENA AUTHORITY

1.1 Statutory Framework

Massachusetts agencies derive subpoena power from several sources:

• M.G.L. c. 30A, § 12 — Grants agencies the power to issue subpoenas in adjudicatory proceedings requiring attendance and testimony of witnesses and the production of books, records, correspondence, or documents relating to any matter in question
• M.G.L. c. 93A, § 6 — Grants the Attorney General authority to issue Civil Investigative Demands (CIDs) in consumer protection investigations
• M.G.L. c. 93A, § 7 — Provides enforcement mechanism for CIDs through Superior Court petition
• Individual agency enabling statutes — Many agencies have independent subpoena authority in their organic statutes

1.2 Types of Administrative Subpoenas

1.3 Common Issuing Agencies

• Massachusetts Attorney General's Office (AGO)
• Division of Administrative Law Appeals (DALA)
• Department of Public Utilities (DPU)
• Division of Insurance (DOI)
• Department of Environmental Protection (DEP)
• Department of Labor Standards (DLS)
• Board of Registration in Medicine
• Division of Professional Licensure (DPL)
• Massachusetts Gaming Commission
• Securities Division of the Secretary of the Commonwealth
• Department of Revenue (DOR)

2. DEADLINE AND RESPONSE REQUIREMENTS

2.1 Key Deadlines

2.2 Service Requirements

Under M.G.L. c. 30A, § 12, subpoenas must adhere, insofar as practicable, to the form used in civil cases before the courts. Service may be made by:

• Personal delivery (hand service)
• Any method consistent with Massachusetts Rules of Civil Procedure

2.3 Who May Issue Subpoenas

• Any member of the agency
• Any person designated by the agency for such purpose
• A notary public or justice of the peace (at party request)
• The agency itself upon written application by a party

3. INITIAL ASSESSMENT CHECKLIST

Upon receipt of an administrative subpoena or CID, complete the following:

3.1 Receipt and Logging

☐ Record date and time of receipt of the subpoena
☐ Record method of service (personal service, mail, other)
☐ Identify the person who received or accepted service
☐ Calendar the return/compliance date immediately
☐ Calendar internal review deadlines (recommend 5 business days before return date)
☐ Make copies of the subpoena and all accompanying documents

3.2 Authority and Jurisdiction Verification

☐ Identify the issuing agency and the specific individual who signed the subpoena
☐ Verify the statutory authority cited in the subpoena
☐ Confirm the agency has subject matter jurisdiction over the investigation or proceeding
☐ Confirm the agency has personal jurisdiction over the recipient
☐ Determine whether this is an adjudicatory proceeding subpoena (c. 30A) or a CID (c. 93A)
☐ Verify the subpoena was properly authorized (signed by agency member, designee, or notary)

3.3 Scope Analysis

☐ List each request or demand item individually
☐ Note all date ranges specified
☐ Identify custodians whose records are sought
☐ Identify the subject matter and scope of the underlying investigation
☐ Assess whether requests are relevant to the stated investigation
☐ Flag requests that appear overbroad, vague, or unduly burdensome
☐ Identify any requests implicating privileged information
☐ Identify any requests implicating trade secrets or confidential business information
☐ Identify any requests implicating personally identifiable information (PII) or protected health information (PHI)

3.4 Preservation Obligations

☐ Issue litigation hold notice to all relevant custodians
☐ Suspend automatic deletion policies for relevant data
☐ Preserve all potentially responsive electronic and physical records
☐ Coordinate with IT department for email, server, and cloud storage preservation
☐ Document all preservation steps taken

4. GROUNDS TO CHALLENGE AN ADMINISTRATIVE SUBPOENA

4.1 Lack of Jurisdiction

• The agency lacks subject matter jurisdiction over the investigation
• The agency lacks personal jurisdiction over the subpoena recipient
• The matter falls outside the scope of the agency's enabling statute
• The subpoena was issued outside the context of a lawful investigation or adjudicatory proceeding

4.2 Overbreadth and Irrelevance

Under M.G.L. c. 30A, § 12, the agency may vacate a subpoena upon finding that the testimony or evidence "does not relate with reasonable directness to any matter in question."

• Requests extend beyond the scope of the stated investigation
• Requests seek information with no reasonable connection to the matter in question
• Date ranges are unreasonably broad
• Requests target persons or entities with no connection to the matter

4.3 Undue Burden or Oppression

The statute authorizes vacating subpoenas that are "unreasonable or oppressive":

• Cost of compliance is disproportionate to the needs of the investigation
• Volume of responsive documents is unreasonably large
• Compliance would disrupt business operations
• Compliance requires creation of records that do not exist

4.4 Privilege

• Attorney-client privilege — Communications between client and attorney for purpose of obtaining legal advice
• Work product doctrine — Materials prepared in anticipation of litigation
• Self-incrimination (Fifth Amendment) — Applicable to individuals (not corporations) where testimony could be incriminating
• Spousal privilege — Communications between spouses
• Psychotherapist-patient privilege — M.G.L. c. 233, § 20B
• Clergy-communicant privilege — M.G.L. c. 233, § 20A

4.5 Trade Secret Protection

• Massachusetts Trade Secrets Act (M.G.L. c. 93, §§ 42-42A)
• Request a protective order limiting disclosure and use of trade secret materials
• Propose confidentiality designations for sensitive business information

4.6 Procedural Defects

• Subpoena was not issued by an authorized person
• Subpoena was not properly served
• Subpoena was not issued a reasonable period in advance of the return date
• Subpoena does not conform to the form used in civil cases before the courts
• No pending adjudicatory proceeding (for c. 30A subpoenas)
• CID does not comply with the specificity requirements of c. 93A, § 6

5. RESPONSE LETTER TEMPLATE

[LETTERHEAD]

[Date: __/__/____]

[Agency Name]
[Agency Address]
[City, State, ZIP]

Attn: [________________________________]

Re: Response to Administrative Subpoena / Civil Investigative Demand
    Subpoena/CID No.: [________________________________]
    Issued: [__/__/____]
    Return Date: [__/__/____]
    Investigation/Case No.: [________________________________]

Dear [________________________________]:

This firm represents [________________________________] ("Respondent") in
connection with the above-referenced [subpoena / Civil Investigative Demand]
issued by [________________________________] on [__/__/____], with a return
date of [__/__/____].

I. RESPONSE TO SPECIFIC REQUESTS

[Request No. 1: [________________________________]

Response: [________________________________]

Documents Produced: [____] documents, Bates Nos. [____] through [____]

Objections (if any): [________________________________]]

[Repeat for each request]

II. GENERAL OBJECTIONS

Respondent objects to the [subpoena/CID] to the extent it:

1. Seeks information protected by the attorney-client privilege and/or
   work product doctrine;
2. Seeks information that does not relate with reasonable directness to
   any matter in question in the pending proceeding/investigation;
3. Is unreasonable or oppressive in scope;
4. Seeks trade secrets or confidential business information without
   adequate protective measures;
5. [________________________________].

III. PRIVILEGE LOG

A privilege log identifying documents withheld on the basis of privilege is
attached hereto as Exhibit [____].

IV. PRODUCTION

Respondent produces herewith [____] documents, Bates-labeled
[____] through [____], in [format: PDF / native / paper] format.

V. RESERVATION OF RIGHTS

Respondent reserves all rights and objections not specifically waived herein,
including without limitation the right to supplement or amend this response.

Respectfully submitted,

_________________________________________
[Attorney Name], Esq.
[Bar No.: ____]
[Firm Name]
[Address]
[Phone: ____]
[Email: ________________________________]

6. MOTION TO QUASH OR MODIFY TEMPLATE

COMMONWEALTH OF MASSACHUSETTS
[DIVISION OF ADMINISTRATIVE LAW APPEALS / SUPERIOR COURT DEPARTMENT]

In the Matter of:                    )
                                     )
[________________________________]   )   Docket No. [________________]
                                     )
         Respondent.                 )

MOTION TO QUASH OR MODIFY ADMINISTRATIVE SUBPOENA

NOW COMES [________________________________] ("Respondent"), by and through
undersigned counsel, and respectfully moves this [Agency/Court] to quash or,
in the alternative, modify the administrative subpoena issued on
[__/__/____], with a return date of [__/__/____]. In support of this
Motion, Respondent states as follows:

I. BACKGROUND

1. On [__/__/____], [Agency Name] issued a [subpoena duces tecum /
   subpoena ad testificandum / Civil Investigative Demand] to Respondent
   in connection with [________________________________].

2. The subpoena commands Respondent to [produce documents / appear and
   testify / both] on or before [__/__/____].

3. Respondent received the subpoena on [__/__/____].

II. STATEMENT OF FACTS

4. [________________________________]

5. [________________________________]

III. LEGAL ARGUMENT

A. THE SUBPOENA SHOULD BE QUASHED FOR LACK OF JURISDICTION

6. [________________________________]

B. THE SUBPOENA IS UNREASONABLY OVERBROAD

7. Under M.G.L. c. 30A, § 12, a subpoena may be vacated where the
   evidence sought "does not relate with reasonable directness to any
   matter in question" or where the subpoena is "unreasonable or
   oppressive."

8. [________________________________]

C. THE SUBPOENA SEEKS PRIVILEGED INFORMATION

9. [________________________________]

D. THE SUBPOENA WAS NOT ISSUED A REASONABLE PERIOD IN ADVANCE

10. Under M.G.L. c. 30A, § 12, a subpoena may be vacated where it "has
    not been issued a reasonable period in advance of the time when the
    evidence is requested."

11. [________________________________]

IV. REQUEST FOR RELIEF

WHEREFORE, Respondent respectfully requests that this [Agency/Court]:

(a) Quash the subpoena in its entirety; or, in the alternative,

(b) Modify the subpoena to narrow its scope as follows:
    [________________________________];

(c) Issue a protective order governing the confidentiality of any
    documents produced;

(d) Grant such other and further relief as is just and proper.

Respectfully submitted,

_________________________________________
[Attorney Name], Esq.
[BBO No.: ____]
[Firm Name]
[Address]
[Phone: ____]
[Email: ________________________________]

Date: [__/__/____]

CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], a true and correct copy of the
foregoing Motion was served upon all parties of record by
[________________________________].

_________________________________________
[Attorney Name]

7. PRIVILEGE LOG FORMAT

Privilege Designations:

• AC — Attorney-Client Privilege
• WP — Work Product Doctrine
• AC/WP — Attorney-Client Privilege and Work Product
• 5A — Fifth Amendment Privilege Against Self-Incrimination
• TS — Trade Secret / Confidential Business Information
• PP — Psychotherapist-Patient Privilege (M.G.L. c. 233, § 20B)

8. COMPLIANCE PROCEDURES

8.1 Document Collection

☐ Identify all custodians whose files may contain responsive documents
☐ Identify all data sources (email, shared drives, cloud storage, paper files, mobile devices)
☐ Collect documents from all identified sources
☐ Maintain chain of custody documentation for all collected materials
☐ Use forensically sound methods for electronic collection where appropriate

8.2 Document Review

☐ Conduct first-level relevance review
☐ Conduct privilege review — flag attorney-client, work product, and other privileged materials
☐ Identify and segregate trade secret and confidential business information
☐ Redact PII, PHI, or other protected information as appropriate
☐ Prepare privilege log for all withheld or redacted documents
☐ Conduct quality control review of production set

8.3 Production

☐ Organize documents by request number where practicable
☐ Apply Bates numbering to all produced documents
☐ Prepare production in agreed-upon format (PDF, native, TIFF, paper)
☐ Prepare cover letter identifying documents produced, documents withheld, and any objections
☐ Retain complete copy of all produced materials
☐ Deliver production by the return date (or extended deadline)
☐ Obtain confirmation of receipt from the agency

8.4 Post-Production

☐ Calendar any follow-up deadlines
☐ Monitor for supplemental requests or deficiency notices
☐ Maintain all work product and correspondence related to the subpoena response
☐ Review privilege log for completeness and accuracy

9. CONSEQUENCES OF NON-COMPLIANCE

9.1 Enforcement Mechanism

Under M.G.L. c. 30A, § 12, upon failure to comply with a subpoena:

1. The agency or the requesting party may apply to a Justice of the Superior Court
2. The Justice may issue an order requiring attendance before the agency and the giving of testimony or production of evidence
3. Any person failing to obey the court's order may be punished for contempt

9.2 CID Enforcement (c. 93A, § 7)

For Civil Investigative Demands:

1. The AG may petition the Superior Court for an order compelling compliance
2. The recipient bears a "heavy burden" to show "good cause" why compliance should not be compelled
3. The recipient must demonstrate the AG is acting "arbitrarily or capriciously" or the information is "plainly irrelevant"

9.3 Potential Consequences

• Contempt of court — Fines and/or imprisonment for willful disobedience
• Adverse inference — Agency may draw negative inference from non-compliance
• Default judgment — In adjudicatory proceedings, failure to comply may result in default
• Sanctions — Court or agency may impose monetary sanctions
• Obstruction charges — In extreme cases, potential criminal liability for obstruction

10. SPECIAL CONSIDERATIONS FOR MASSACHUSETTS

10.1 DALA Proceedings

The Division of Administrative Law Appeals (DALA) conducts adjudicatory proceedings for numerous state agencies. Subpoena requests to DALA should:

• Be made in writing in advance of the hearing date
• Identify the case name, docket number, and hearing date
• Specify the names and addresses of witnesses to be subpoenaed
• Describe documents to be produced with reasonable particularity

10.2 AG CID Procedures

Civil Investigative Demands under c. 93A, § 6 must:

• Identify the nature of the conduct under investigation
• Describe with reasonable particularity the documents or information demanded
• Specify a reasonable return date
• State that the recipient may object or move to modify the CID

10.3 Coordination with Federal Proceedings

If the administrative subpoena relates to a matter also under federal investigation:

☐ Assess potential Fifth Amendment implications
☐ Determine whether a stay of the administrative proceeding is appropriate
☐ Consider implications of parallel proceedings for privilege assertions
☐ Coordinate response strategy across both proceedings

11. SOURCES AND REFERENCES

• Massachusetts General Laws, Chapter 30A, § 12
• Massachusetts General Laws, Chapter 93A, §§ 6-7
• Massachusetts Rules of Civil Procedure, Rule 45
• Division of Administrative Law Appeals Practice Guide
• 801 CMR 1.01 (Standard Adjudicatory Rules of Practice and Procedure)
• Massachusetts Superior Court Standing Order 1-09 (Confidentiality)

This guide is intended for use by licensed Massachusetts attorneys. It does not constitute legal advice and should not be relied upon as a substitute for consultation with qualified legal counsel familiar with the specific facts and circumstances of the matter at hand.