Administrative Subpoena Response Guide

ADMINISTRATIVE SUBPOENA RESPONSE GUIDE — PENNSYLVANIA

PART I: OVERVIEW AND STATUTORY AUTHORITY

A. Scope of This Guide

This guide provides a comprehensive framework for responding to administrative subpoenas issued by Pennsylvania state agencies, the Attorney General, and administrative hearing officers. It covers subpoenas duces tecum (document production) and subpoenas ad testificandum (testimony), including response procedures, grounds for challenge, and compliance protocols.

B. Statutory Framework

1. Administrative Agency Law — 2 Pa.C.S. Chapter 5

The Pennsylvania Administrative Agency Law establishes the framework for agency adjudications:

• 2 Pa.C.S. § 504 (Hearing and Record): No adjudication of a Commonwealth agency shall be valid as to any party unless the party has been afforded reasonable notice of a hearing and an opportunity to be heard. All testimony shall be stenographically recorded and a full and complete record shall be kept.
• 2 Pa.C.S. § 505 (Evidence and Cross-Examination): In adjudications, all parties have the right to cross-examine witnesses and to submit rebuttal evidence. Commonwealth agencies shall not be bound by technical rules of evidence, and all relevant evidence of reasonably probative value may be received.
• 2 Pa.C.S. § 506 (Adjudications): All adjudications shall be in writing, contain findings and reasons for the adjudication, and shall be served upon all parties.

2. General Rules of Administrative Practice and Procedure — 1 Pa. Code

• 1 Pa. Code § 35.142: Subpoenas may be issued by the agency or presiding officer to compel attendance of witnesses and production of documents
• 1 Pa. Code § 35.139: Applications for subpoenas shall be made in writing, specifying the documents or testimony sought
• 1 Pa. Code § 35.142: A subpoena may be served personally or by certified mail, return receipt requested
• 1 Pa. Code § 35.150: Motions to quash or limit subpoenas may be filed with the presiding officer

3. Attorney General — Unfair Trade Practices and Consumer Protection Law (73 P.S. § 201-1 et seq.)

• 73 P.S. § 201-6: The AG has authority to investigate potential violations of the UTPCPL
• The AG may subpoena witnesses and compel the production of books, papers, records, and documents
• The AG may examine any person under oath in connection with an investigation
• Failure to comply with an AG subpoena may result in contempt proceedings in the Commonwealth Court or court of common pleas

4. Commonwealth Attorneys Act (71 P.S. § 307-7)

The AG has general investigative authority including the power to issue subpoenas and investigative demands in connection with consumer protection, antitrust, and other civil enforcement matters.

5. Agency-Specific Subpoena Authority

Numerous Pennsylvania agencies have independent subpoena power:

• Public Utility Commission (PUC) — 66 Pa.C.S. § 331
• Department of Environmental Protection (DEP) — 35 P.S. § 691.601
• Insurance Department — 40 P.S. § 323
• Department of Banking and Securities — 71 P.S. § 733-204
• State Board of Medicine — 63 P.S. § 422.17
• Board of Pharmacy — 63 P.S. § 390-3.1
• Department of Revenue — 72 P.S. § 7271

C. Common Issuing Agencies

PART II: DEADLINES AND RESPONSE REQUIREMENTS

A. Critical Timelines

B. Service Requirements

Agency Adjudication Subpoenas (1 Pa. Code § 35.142):

• Personal service or certified mail, return receipt requested
• Service must be made a reasonable time in advance of the hearing
• Witness fees: as provided by applicable agency rules and 42 Pa.C.S. § 5903
• Mileage fees must be tendered upon service

AG UTPCPL Subpoenas (73 P.S. § 201-6):

• Personal service or service by certified mail
• Must specify the documents sought and the return date
• Must state the statutory authority under which the investigation is conducted

PART III: INITIAL ASSESSMENT CHECKLIST

Upon receipt of an administrative subpoena, complete the following assessment:

A. Receipt and Documentation

☐ Record date and time of receipt: [__/__/____] at [____]
☐ Record method of service: ☐ Personal ☐ Certified Mail ☐ Sheriff ☐ Other: [________________________________]
☐ Identify the person who received the subpoena: [________________________________]
☐ Preserve the original subpoena and all accompanying documents
☐ Scan and create digital copies of all materials received

B. Identify the Subpoena Type

☐ Subpoena ad testificandum (testimony only)
☐ Subpoena duces tecum (documents/records)
☐ Combined (testimony and documents)
☐ AG investigative subpoena under UTPCPL (73 P.S. § 201-6)
☐ AG investigative demand under Commonwealth Attorneys Act
☐ Agency-specific investigative demand

C. Identify the Issuing Authority

☐ Issuing agency: [________________________________]
☐ Issuing official name and title: [________________________________]
☐ Case or investigation reference: [________________________________]
☐ Docket number (if applicable): [________________________________]
☐ Statutory authority cited: [________________________________]
☐ Verify the agency has subpoena power under the cited statute
☐ Determine whether the subpoena arises from an adjudication (2 Pa.C.S. Chapter 5) or an investigation

D. Calendar Critical Dates

☐ Return date / hearing date: [__/__/____]
☐ Document production deadline: [__/__/____]
☐ Deadline to file motion to quash or modify: [__/__/____]
☐ Set internal review deadlines (at least 10 days before return date)
☐ Calendar follow-up dates for supplemental productions

E. Assess Scope and Burden

☐ List all categories of documents or testimony requested
☐ Identify date ranges specified: [________________________________]
☐ Identify custodians whose records are sought: [________________________________]
☐ Estimate volume of responsive documents
☐ Estimate cost and personnel time required for compliance
☐ Identify requests for electronically stored information (ESI)
☐ Determine whether the subpoena calls for pre-existing documents only or requires creation of compilations

F. Privilege and Protection Review

☐ Identify potential attorney-client privileged materials (42 Pa.C.S. § 5928)
☐ Identify potential work product materials (Pa.R.C.P. 4003.3)
☐ Identify trade secrets or proprietary business information (Uniform Trade Secrets Act, 12 Pa.C.S. § 5302 et seq.)
☐ Identify physician-patient privileged materials (42 Pa.C.S. § 5929)
☐ Identify materials implicating Fifth Amendment self-incrimination concerns
☐ Identify materials protected by statutory confidentiality provisions
☐ Identify tax return confidentiality issues (72 P.S. § 7271.1)
☐ Identify HIPAA-protected health information

G. Verify Proper Service

☐ Confirm service complied with applicable rules (personal or certified mail)
☐ Confirm witness fees were tendered
☐ Confirm subpoena was signed by authorized person
☐ Confirm reasonable notice was provided before the return date
☐ Confirm the subpoena identifies the proceeding or investigation

PART IV: GROUNDS TO CHALLENGE AN ADMINISTRATIVE SUBPOENA

A. Lack of Jurisdiction or Authority

☐ The issuing agency lacks statutory authority to issue subpoenas
☐ The subpoena exceeds the scope of the agency's enabling statute
☐ The agency lacks personal jurisdiction over the recipient
☐ The investigation or proceeding is outside the agency's subject matter jurisdiction
☐ The adjudication does not satisfy the requirements of 2 Pa.C.S. § 504
☐ The AG investigation is not related to unfair trade practices or consumer protection (for UTPCPL subpoenas)

B. Overbreadth and Unreasonable Burden

☐ The requests are not reasonably related to the subject matter of the investigation or adjudication
☐ The date range is unreasonably broad
☐ The number of custodians or categories is excessive
☐ Compliance would impose unreasonable cost or burden disproportionate to the agency's need
☐ The requests seek "all documents" without reasonable specificity
☐ Less burdensome alternatives exist to obtain the same information
☐ The subpoena amounts to an impermissible "fishing expedition"

C. Privilege and Confidentiality

☐ Attorney-client privilege (42 Pa.C.S. § 5928)
☐ Work product doctrine (Pa.R.C.P. 4003.3)
☐ Trade secret protection (12 Pa.C.S. § 5302 et seq.)
☐ Physician-patient privilege (42 Pa.C.S. § 5929)
☐ Clergy-communicant privilege (42 Pa.C.S. § 5943)
☐ Spousal privilege (42 Pa.C.S. § 5913)
☐ Accountant-client privilege (63 P.S. § 9.11a)
☐ Tax return confidentiality (72 P.S. § 7271.1)
☐ HIPAA-protected health information
☐ Banking and financial record privacy (7 P.S. § 6110 et seq.)

D. Fifth Amendment / Self-Incrimination

☐ Compliance would require testimonial evidence that could be self-incriminating
☐ The "act of production" doctrine applies
☐ Pa. Const. Art. I, § 9 provides self-incrimination protections parallel to the Fifth Amendment
☐ Note: Fifth Amendment applies to individuals, not corporations or other business entities
☐ Note: The "required records" doctrine may override the privilege for records required to be kept by law

E. Procedural Defects

☐ Improper service (not personal or certified mail)
☐ Failure to tender witness fees
☐ Subpoena not signed by authorized person
☐ Insufficient notice before return date
☐ Subpoena fails to identify the proceeding or investigation with specificity
☐ No application for subpoena filed (where required by 1 Pa. Code § 35.139)
☐ Subpoena does not comply with format requirements

F. Other Defenses

☐ Documents no longer exist or were destroyed in ordinary course before receipt of subpoena
☐ Documents are not in the recipient's possession, custody, or control
☐ Compliance is physically impossible
☐ The subpoena was issued for an improper purpose (harassment, competitive intelligence)
☐ Federal preemption
☐ The subpoena was issued after the agency's statutory authority has expired

PART V: RESPONSE LETTER TEMPLATE

[Letterhead]

[__/__/____]

[________________________________]
[Agency Name / Office of Attorney General]
[________________________________]
[Address]
[________________________________]
[City, State, ZIP]

Re: Response to Administrative Subpoena
Docket/Investigation No.: [________________________________]
Date of Subpoena: [__/__/____]
Return Date: [__/__/____]

Dear [________________________________]:

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

I. Acknowledgment of Receipt

Respondent acknowledges receipt of the subpoena on [__/__/____]. This response is submitted on behalf of Respondent.

II. Scope of Response

☐ [Option A — Full Compliance]: Respondent has conducted a diligent search and is producing all non-privileged responsive documents. Production consists of [____] pages, Bates-stamped [________________________________] through [________________________________].

☐ [Option B — Partial Compliance with Objections]: Respondent is producing responsive, non-privileged documents to the extent described below, subject to the objections and reservations set forth herein.

☐ [Option C — Objection / Motion to Quash]: Respondent objects to the subpoena on the grounds set forth herein and intends to file a motion to quash or modify.

III. General Objections

1. Respondent objects to any request that seeks documents or information protected by the attorney-client privilege (42 Pa.C.S. § 5928), the work product doctrine (Pa.R.C.P. 4003.3), or any other applicable privilege.

2. Respondent objects to any request to the extent it is overbroad, unduly burdensome, or not reasonably related to the subject matter of the investigation or adjudication.

3. Respondent objects to any request that seeks trade secrets or proprietary business information (12 Pa.C.S. § 5302 et seq.) absent adequate protective measures.

4. Respondent objects to any request that would compel testimony or production in violation of the Fifth Amendment or Pa. Const. Art. I, § 9.

5. [________________________________]

IV. Specific Responses

Request No. [____]: [________________________________]

Response: [________________________________]

Documents Produced: Bates Nos. [________________________________]

Documents Withheld (Privilege): See Privilege Log, Exhibit A

V. Privilege Log

A privilege log is attached as Exhibit A.

VI. Reservation of Rights

Respondent reserves the right to supplement, amend, or modify this response and does not waive any privilege, objection, or defense.

Respectfully submitted,

[________________________________]
Attorney for Respondent
[________________________________]
[Address, Phone, Email]
[Pa. Attorney I.D. No.: [________________________________]]

PART VI: MOTION TO QUASH OR MODIFY — TEMPLATE

Before the [Agency / Commonwealth Court / Court of Common Pleas of [________________________________] County]

[________________________________],
Movant,

v.

[________________________________],
Respondent Agency.

Docket No.: [________________________________]

MOTION TO QUASH OR MODIFY ADMINISTRATIVE SUBPOENA

[________________________________] ("Movant"), by and through undersigned counsel, respectfully moves to quash or, in the alternative, modify the administrative subpoena issued by [________________________________] on [__/__/____], and in support states:

I. BACKGROUND

1. On [__/__/____], [________________________________] ("Agency") issued an administrative subpoena directed to Movant requiring [☐ production of documents / ☐ testimony / ☐ both].

2. The subpoena was issued pursuant to [________________________________] [cite statutory authority].

3. The return date of the subpoena is [__/__/____].

4. [Describe the nature of the investigation or proceeding.]

II. GROUNDS FOR RELIEF

☐ A. Lack of Authority. The Agency lacks statutory authority to issue the subpoena because [________________________________].

☐ B. Overbreadth. The subpoena is overbroad because it seeks [________________________________], which is not reasonably related to the investigation or adjudication.

☐ C. Undue Burden. Compliance would impose an unreasonable burden because [________________________________]. The estimated cost of compliance is $[________________________________] requiring approximately [____] hours.

☐ D. Privilege. The subpoena seeks materials protected by [☐ attorney-client privilege (42 Pa.C.S. § 5928) / ☐ work product doctrine (Pa.R.C.P. 4003.3) / ☐ trade secret protection (12 Pa.C.S. § 5302 et seq.) / ☐ other: [________________________________]].

☐ E. Fifth Amendment. Compliance would compel self-incriminating testimony in violation of the Fifth Amendment and Pa. Const. Art. I, § 9.

☐ F. Procedural Defects. The subpoena is procedurally defective because [________________________________].

☐ G. Other. [________________________________]

III. ALTERNATIVE RELIEF REQUESTED

In the alternative, Movant requests that the Court/Agency modify the subpoena as follows:

• Narrow the date range to: [________________________________]
• Limit custodians to: [________________________________]
• Limit document categories to: [________________________________]
• Enter a protective order regarding: [________________________________]
• Extend the return date to: [__/__/____]

IV. CONCLUSION

WHEREFORE, Movant respectfully requests that this Honorable Court / presiding officer enter an order quashing the administrative subpoena or, in the alternative, modifying the subpoena as set forth above, and granting such other relief as is just and proper.

Respectfully submitted,

[________________________________]
Attorney for Movant
[________________________________]
[Address, Phone, Email]
[Pa. Attorney I.D. No.: [________________________________]]
Dated: [__/__/____]

VERIFICATION

I, [________________________________], verify that the statements made in this Motion are true and correct to the best of my knowledge, information, and belief, subject to the penalties of 18 Pa.C.S. § 4904 relating to unsworn falsification to authorities.

[________________________________]
Signature
Dated: [__/__/____]

PART VII: PRIVILEGE LOG FORMAT

Instructions

Prepare a privilege log for all documents withheld on the basis of privilege. Under Pennsylvania practice, the log must identify each document with sufficient detail to allow the agency or court to evaluate the privilege claim without revealing privileged content.

Privilege Codes

• AC — Attorney-Client Privilege (42 Pa.C.S. § 5928)
• WP — Work Product Doctrine (Pa.R.C.P. 4003.3)
• TS — Trade Secret (12 Pa.C.S. § 5302 et seq.)
• PP — Physician-Patient Privilege (42 Pa.C.S. § 5929)
• CC — Clergy-Communicant Privilege (42 Pa.C.S. § 5943)
• ACCT — Accountant-Client Privilege (63 P.S. § 9.11a)
• TAX — Tax Return Confidentiality (72 P.S. § 7271.1)
• STAT — Statutory Confidentiality Protection
• 5A — Fifth Amendment / Self-Incrimination

PART VIII: COMPLIANCE PROCEDURES

A. Litigation Hold

1. Issue a written litigation hold notice to all relevant custodians immediately upon receipt
2. Identify all custodians whose files may contain responsive documents
3. Suspend all document destruction and auto-deletion policies for responsive materials
4. Coordinate with IT to preserve ESI, including email, databases, shared drives, and cloud storage
5. Document the hold process and retain records of all hold notices

B. Document Collection

1. Collect documents from all identified custodians and repositories
2. Include physical files, electronic documents, email, text messages, and cloud-based data
3. Maintain detailed chain of custody records
4. Do not alter, annotate, or modify original documents

C. Bates Numbering and Organization

Bates Numbering Convention:

Format: [CLIENT INITIALS]-[PRODUCTION SET]-[NUMBER]

Example: GHI-P01-000001 through GHI-P01-001000

• Apply sequential Bates numbers to every page produced
• Maintain a master Bates index cross-referencing numbers to original file locations
• Apply confidentiality legends where a protective order is in place

D. Document Review Protocol

1. First-Level Review: Review for responsiveness to each request
2. Second-Level Review: Review for privilege, confidentiality, and trade secret issues
3. Quality Control Review: Sample check for consistency and completeness
4. Redaction Review: Apply redactions with clear labels (e.g., "REDACTED — Attorney-Client Privilege")

E. Production Format

• Produce in the format specified by the subpoena or agency rules
• Default: PDF with Bates numbers, or native format for ESI
• Include a production cover letter identifying the volume, Bates range, and requests addressed
• Provide a document index for productions exceeding 500 pages

PART IX: CONSEQUENCES OF NON-COMPLIANCE

A. Agency Adjudication Subpoenas

• The presiding officer may draw adverse inferences from a party's refusal to comply
• The agency may petition the court for enforcement
• Contempt of court for failure to comply with a court enforcement order
• Potential sanctions including exclusion of evidence or entry of default

B. AG UTPCPL Subpoenas (73 P.S. § 201-6)

• The AG may petition the Commonwealth Court or court of common pleas for an order compelling compliance
• Contempt sanctions for violating a court enforcement order, including fines and imprisonment
• Adverse inferences in subsequent UTPCPL enforcement actions
• Court may award costs and attorneys' fees to the AG

C. Agency-Specific Consequences

• License suspension or revocation for regulated entities
• Adverse presumptions in pending adjudicatory proceedings
• Civil penalties as specified in the agency's enabling statute
• Referral to the AG for enforcement
• Denial of pending applications or renewals

PART X: NEGOTIATION STRATEGIES

A. Initial Contact

1. Contact the issuing agency or AG's office promptly after receipt
2. Identify the assigned attorney, hearing examiner, or investigator
3. Confirm the scope and purpose of the investigation
4. Request clarification of ambiguous requests

B. Scope Negotiations

1. Propose narrowed date ranges
2. Suggest limiting custodians to the most relevant individuals
3. Offer a representative sample before full production
4. Propose agreed-upon search terms for ESI
5. Request agreement on production format and schedule

C. Protective Orders

1. Request a confidentiality agreement or stipulated protective order for trade secrets and proprietary information
2. Propose tiered confidentiality designations (Confidential / Highly Confidential / Attorneys' Eyes Only)
3. Seek agreement on privilege clawback (non-waiver) procedures

D. Extensions

1. Request extensions in writing with specific justification
2. Propose a rolling production schedule for large document sets
3. Document all agreements on modified deadlines

PART XI: SPECIAL CONSIDERATIONS FOR PENNSYLVANIA PRACTICE

A. 2 Pa.C.S. Chapter 5 — Adjudications

• Under § 504, parties must receive reasonable notice and an opportunity to be heard before any adjudication is valid
• Under § 505, agencies are not bound by technical rules of evidence — all relevant evidence of reasonably probative value is admissible
• Hearsay evidence may be admitted but cannot constitute the sole basis for a finding of fact
• Written adjudications must contain findings of fact and reasons (§ 506)
• Appeals from adjudications are governed by 2 Pa.C.S. § 702 (Commonwealth Court or court of common pleas)

B. PUC Proceedings

• The PUC has its own comprehensive procedural rules (52 Pa. Code Chapter 5)
• 52 Pa. Code § 5.421 governs subpoenas in PUC proceedings
• Discovery in PUC proceedings follows PUC rules, not the Rules of Civil Procedure
• The PUC may issue subpoenas on its own motion or upon application of a party

C. DEP Enforcement

• DEP investigations may involve both subpoenas and on-site inspections
• Environmental compliance records may be subject to federal reporting requirements
• Parallel federal EPA enforcement is possible
• DEP may share investigation results with federal agencies

D. AG Investigations Under UTPCPL

• The AG has pre-suit investigative authority — no complaint needs to be filed first
• UTPCPL investigations may lead to civil enforcement actions, consent decrees, or assurances of voluntary compliance
• The AG may seek injunctive relief, civil penalties up to $1,000 per violation (with enhancements for elderly victims), and restitution
• Private parties also have a cause of action under UTPCPL with treble damages available

E. Verification Requirement

• Pennsylvania practice typically requires a verification (sworn statement) with motions and responses
• The verification must comply with 18 Pa.C.S. § 4904 (unsworn falsification to authorities) or Pa.R.C.P. 1024
• Ensure all motions to quash include a proper verification

F. Parallel Criminal Investigations

• Coordinate responses carefully if criminal prosecution is possible
• Pa. Const. Art. I, § 9 provides self-incrimination protections
• Consider whether the administrative investigation may be referred for criminal prosecution
• Retain criminal defense counsel if Fifth Amendment issues arise

SOURCES AND REFERENCES

• 2 Pa.C.S. §§ 501-508 — Administrative Agency Law, Practice and Procedure
• 73 P.S. §§ 201-1 through 201-9.2 — Unfair Trade Practices and Consumer Protection Law
• 71 P.S. § 307-7 — Commonwealth Attorneys Act
• 1 Pa. Code §§ 35.137-35.152 — General Rules of Administrative Practice and Procedure, Subpoenas
• 52 Pa. Code Chapter 5 — PUC Rules of Administrative Practice and Procedure
• Pennsylvania Attorney General — https://www.attorneygeneral.gov
• Pennsylvania Consolidated Statutes — https://www.legis.state.pa.us