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1. Statutory Authority - ERISA
Section 504(c). For the purposes of any Title I ERISA
investigation, the provisions of sections 9 and 10 (relating
to the attendance of witnesses and the production of books,
records, and documents) of the Federal Trade Commission Act
(15 U.S.C. Ё49 and 50) are applicable (without regard to
any limitation in such sections respecting persons,
partnerships, banks, or common carriers) to the jurisdiction,
powers, and duties of the Secretary or any officers designated
by him. These provisions give the Secretary 1) the authority
to administer oaths, 2) the power to compel the attendance of
witnesses, and 3) the access to and the right to copy
documentary evidence.
2. Subpoena Duces Tecum. A subpoena duces
tecum is a command to a person or organization to appear
at a specified time and place and to bring certain designated
documents, to produce the documents, and to testify as to
their authenticity as well as any other matter concerning
which proper inquiry is made.
3. Subpoena Ad Testificandum. A
subpoena ad testificandum is a command to a named
individual or corporation to appear at a specified time and
place to give oral testimony under oath. A verbatim transcript
is made of this testimony.
4. Accommodation Subpoena. An
accommodation subpoena is a subpoena issued to persons or
entities who are willing to testify or to produce the
documents requested but are concerned about protecting
themselves from any potential adverse consequences of doing so
without a legal requirement.
5. Subpoena Request EBSA Form 207.
Subpoena requests are reviewed and approved by PBSD or the
appropriate RSOL and issued by the designated issuing
official. A separate request, with a copy of the subpoena
attached, must be submitted for each subpoena requested. The
Investigator/Auditor responsible for the investigation must
complete the subpoena request [Tab H] in the following manner.
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Case Name and Number. Enter the
case name and file number assigned by the office with
primary jurisdiction.
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Subpoena Subject - Name and
Address.
Enter the full name and address of the individual or
organization on whom the subpoena is to be served. If there
is doubt whether the subject is a corporation, check with
the appropriate state office to determine if it is
incorporated.
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Check-off Boxes. In the boxes
on the upper right side of the form, check the appropriate
box to indicate the nature of the subpoena subject.
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Delivery of Subpoena. Enter the
name and address of the person to whom the executed subpoena
is to be delivered.
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Contact and Telephone. Provide
the appropriate information for the Investigator/Auditor
responsible for the investigation.
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Should Subpoena be Expedited.
Indicate whether expedited processing of subpoena is being
requested. Provide an explanation for such treatment when it
is requested.
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Identification of Records. If
this is a request for a subpoena duces tecum, the
description of documents in the subpoena itself should be
attached. The description must be sufficiently broad to
include all documents necessary for the investigation,
though not so broad as to require the production of unneeded
documents. For example, in an investigation of a health and
welfare plan, it is rarely necessary to subpoena individual
participant claim records which comprise the bulk of
documents possessed by the plan. In such a case, the
subpoena should be specifically written to exclude these
documents.
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Description of Investigation.
Include a description of the allegations being investigated
sufficient to show a clear legal connection (nexus) between
the subpoena and the investigation.
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Justification for Issuance.
State fully and concisely how the evidence expected to be
obtained by the subpoena relates to the investigation. In
all cases involving a subpoena duces tecum, the
justification must be complete enough to justify all of the
documents listed in the identification of records.
Include a statement describing the efforts
made to obtain the evidence without a subpoena. In those rare
situations in which a formal request would likely result in
the destruction or concealment of documents, this fact may be
used together with a brief description of the evidence
expected to be obtained to justify the issuance of the
subpoena prior to making a formal request.
For a subpoena ad testificandum, the
justification should contain the following information:
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the relationship of the individual to
be deposed to the plan or related entity and the reason the
testimony is necessary to the investigation;
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the estimated number of days
stenographic services will be required;
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the name of the individual who will be
taking the testimony as well as the name of the
Investigator/Auditor assigned to the case, if different; and
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whether any reason exists to expedite
preparation of the transcript.
Check the appropriate boxes in the bottom
portion of the justification section.
6. Review, Approval, and Distribution of
the Subpoena Request
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Review by the Regional Office.
Subject to the direction and guidance of the Director of
Enforcement, each of the RDs is delegated the authority to
execute and issue administrative subpoenas. In their absence
or in the event of potential conflict of interest or other
compelling reason, RDs may delegate authority to execute and issue
administrative subpoenas to the Deputy Regional Director,
Associate Regional Director, or other staff designated by
written notice as Acting Regional Director. The RDs shall
review the subpoena request initiated by their offices and
shall initial and date the subpoena request form at the
bottom of the page. The subpoena request form, along with
the subpoena, shall be forwarded to the appropriate RSOLs
for review and approval. Accommodation subpoenas directed to
individuals or entities not covered by the Right to
Financial Privacy Act may be issued without prior approval
by PBSD or by the RSOL. All subpoenas must be approved by
the Office of the Solicitor of Labor when they are signed by
other than the Regional Director or the Deputy Regional
Director.
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Review by the RSOL or by PBSD.
PBSD or the RSOL will review each subpoena
submitted for legal sufficiency. Each subpoena must be
approved in order to ensure that the subpoena can be
judicially enforced if the subpoenaed subject fails to comply
with the subpoena.
7. Preparation of the Subpoena EBSA Form
200. EBSA uses one subpoena format for both subpoenas ad
testificandum and subpoenas duces tecum.
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The original subpoena, EBSA Form
200
[Tab I] will be served on the subject of the subpoena
(Subject Copy). The Subject Copy, which requests specific
records, should not include the Return of Service and
Certification of Compliance sections on the back. The
Subject Copy should be completed as follows:
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Subject. At the top to the
right of the printed word "To," enter the
subject's name and address. If service is on a legal
entity other than an individual, such as an employee
benefit plan or corporation, immediately above the name of
the entity insert the words "Custodian of
Records."
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Investigator/Auditor. The
next sentence of the printed form, "You are hereby
required to appear before" should be followed by the
name of the person, usually the Investigator/Auditor, who
will receive the documents or testimony pursuant to the
subpoena. The names of two Investigators/Auditors should
usually be entered in case one is unavailable on the date
of return of the subpoena.
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Place of Production. On the
third line of the form, enter the room number and street
address at which production of documents and/or testimony
is required. The fourth line should contain the city,
state, and zip code. If the subpoena is being served as a
matter of accommodation and no contest is expected, the
place of production should be that which is mutually
convenient to the person providing the evidence and the
Investigator/Auditor. If, on the other hand, a contest is
likely, the RO should be the place of production to assure
proper control of the production and evidence if
protested. If the RO has been specified as the place of
production but it becomes evident after service of the
subpoena that no contest is likely, a more convenient
place for inspection of the documents or the taking of
testimony may be accepted by the Investigator/Auditor.
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Date and Time. On the fifth
line of the form, enter the day, month, year, and time at
which production of documents or testimony is required. If
the time is changed after the subpoena has been signed but
before the subpoena is served, the subpoena is either
served as prepared with a cover letter noting the new
time, or a new subpoena must be prepared. Never make
changes on the face of the subpoena.
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Subject of Investigation.
The sixth line should contain the case name identified on
the EBSA case opening form.
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Description of Documents.
Unless only one or two documents are being requested, the
description of documents will be set forth on a separate
sheet of paper, and the phrase "See Attachment"
should be entered. All descriptions of documents must be
crafted to fit the case as well as the subpoenaed subject.
If the subpoena is for testimony only
and no documents are required, the word "None"
should be inserted for the description of documents. In
most circumstances, however, documents will also be
required to provide reference material in order to assist
the witness in remembering names, dates, places, and
events.
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Signature Block. The first
line of the signature block will identify where the
subpoena is signed, followed by the day, month, and year
of signature. Below that, the subpoena will be signed on
the signature line immediately below which will be typed
the name and title of the person signing the subpoena.
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A copy of the subpoena, EBSA Form 200B
(Office Copy) [Tab I], which includes the Return of
Service and Certification of Compliance sections, is
retained in the Regional Office case file. The Office Copy
should be completed as follows:
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Subpoena. Duplicate the
information provided in the Subject Copy (Subject, Place
of Production, Date and Time, Subject of Investigation,
Description of Documents, Signature Block, etc.).
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Return of Service. Complete
this section when service has been effected. The person
serving the subpoena will check the block certifying how
the subpoena was served. This person will also provide the
date that the subpoena was served, his or her name, and
official title.
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Certification of Compliance.
Complete this section when compliance has been achieved.
The person certifying compliance should attest to where
and when the subject of the subpoena was in attendance as
a witness or produced the subpoenaed records. The person
certifying compliance should also provide his or her name
and official title.
The Certification of Compliance should
never be filled out until all documents and testimony
requested by the subpoena have been obtained.
8. Service of the Subpoena. The
Subject copy of the subpoena is served on the subject and the
Office Copy is retained in the RO.
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Service by Mail. Normally,
subpoenas will be served by certified or registered mail,
return receipt requested. Service should be arranged, when
at all possible, by prior phone conversation. Service may
also be arranged through the subject's attorney.
If the subpoena is being served on an
individual, mail delivery should be restricted to that
individual. In all cases, a letter, with references to
telephone discussions when appropriate, should accompany a
subpoena. (See Figure 1, Figure
2, Figure 3, Figure
4, and Figure 5 for model letters.)
The file copy of the letter accompanying the subpoena should
note the specific number of the certified or registered
letter for evidence that it related to the specific
subpoena. When service is complete, the second box of the
return of service should be checked and a copy of the return
receipt should be kept with the copy of the subpoena.
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Service in Person. Where it
proves impractical or impossible to serve the subpoena on an
individual by mail, it may be served personally, although a
copy should also be sent by mail. Personal service is
complete when the subpoena 1) is delivered directly to the
subject; or 2) is left at the subject's residence with a
person of suitable age and discretion residing there
fulltime, such as a spouse; or 3) is left with the person in
charge at the office or place of business of the subject.
9. Altering the Subpoena after Service.
If, after the subpoena has been served on the subject, the
Investigator/Auditor agrees to alter any significant
requirement in the subpoena, such as the date and time
testimony is to be taken or the categories of documents to be
produced, such agreement should be confirmed in writing.
10. Voided Subpoenas. If a subpoena
is voided or not served within 45 days of the date of
issuance, it will be returned to the issuing office with an
appropriate explanation. The subpoena will then be destroyed
and the action recorded in the appropriate log(s).
11. Subpoena Enforcement. In any
case in which a subject fails to respond properly to a
subpoena, the subpoena should be judicially enforced by the
RSOL or PBSD 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 case requiring enforcement, the subpoena
and a request for enforcement will be sent to PBSD or the
appropriate RSOL with a copy to OE/DFO. The attorney will
assist the Investigator/Auditor in preparing an affidavit to
be filed in the proceeding.
12. Administrative Depositions
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Uses. The Investigator/Auditor
must be alert to situations in which sworn testimony will be
useful. Such situations include instances:
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where a matter is likely to be
referred for litigation;
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where testimony is the only evidence
available to establish a necessary element of proof;
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where there is a need to obtain a
clear and definite statement from a witness;
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where there is a reasonable
likelihood that an important witness will be unavailable
at the time of discovery or trial;
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where a critical witness refuses to
voluntarily speak to an Investigator/Auditor; and
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where it is important to have a
clear explanation of a complex factual or technical
matter.
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Witness Fees and Mileage
Reimbursement. Witnesses summoned pursuant to subpoena
are paid the same fees and mileage paid to witnesses called
in federal court. Fees and mileage need not be tendered in
advance when either the United States or an officer or
agency thereof is serving the subpoena. When a claim is made
by a witness for fees and mileage, the claim should be made
on Claims For Witness Attendance Fees, Travel and
Miscellaneous Expenses, Form SF-1156, which may be
obtained from any DOL administrative office. If a witness
who has been subpoenaed is required to remain overnight at a
location away from his/her home, per diem expenses may be
authorized at the same rate as is available to government
employees in travel status. Such authorization should always
be secured in advance.
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Arrangements. The deposition
will usually be taken in the RO or DO unless the witness and
the Investigator/Auditor agree upon another location. The
deposition should be taken in a room large enough to
accommodate at least two questioners, the witness, the
witness's attorney, if any, and the court reporter. Privacy
should be assured during the taking of the deposition. It is
the responsibility of the Investigator/Auditor to arrange
for a court reporter.
It is also the Investigator's/Auditor's
responsibility to arrange for the person to take the
deposition, usually an attorney from PBSD or the RSOL. In
special circumstances, the deposition may be taken by a
Regional Office Investigator/Auditor.
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Format. The court reporter
should be advised that the deposition format is that of
Figure 6. Figure 7 contains an introductory monologue for
administrative depositions. This monologue begins by citing
the statutory authority pursuant to which the deposition is
taken. The witness is usually sworn in by the court
reporter; however, the Investigator/Auditor has the
authority to administer oaths and, if appropriate, may do
so. After the witness has been identified, he/she should be
expressly advised of his/her right to counsel and, if
present, the witness's attorney should identify him/herself
for the record. The witness should then be advised of
his/her fifth amendment right against self-incrimination,
that his/her testimony is being given under penalty of
perjury, that the deposition is being taken pursuant to
subpoena, and that no threats or promises have been made.
Finally, the witness should be informed that he/she may
order a copy of the deposition transcript from the court
reporter.
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Immunity. No DOL employee has
the authority to grant either express or implied immunity to
a witness.
13. Custody of Documents. Upon
receipt of documents in response to a subpoena, carefully note
the documents received and take steps to safeguard the records
in the event that they become necessary in some future legal
or administrative action. Fill out a History and Custody of
Documents Record, EBSA Form 219, whenever you take originals
[see TAB E]. See Chapter 32 for additional guidance on
preservation of evidence.
In order to maintain a clear chain of
custody of documentary evidence, the originals or initially
made copies used as exhibits in Action ROIs should be
preserved in their original state. A History and Custody of Documents Record
should be maintained in the case file. During the course of
the investigation, the Investigator/Auditor may keep a set of
"working documents," that is, a duplicate set of
documents received which can be written on and rearranged in
any order. These working documents should be destroyed when
the investigation is completed and the ROI is written, unless
there is a compelling reason to keep them.
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Copies of Documents. If the
subpoenaed individual wishes to provide only copies and not
original documents, this may be acceptable in many
situations if the individual is willing to pay copying
costs.
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On Site Inspection of Documents.
If the subpoena calls for a large number of documents, the
production of which could interfere with the normal
functioning of the subpoenaed subject, arrangements may be
made to allow access to the subpoenaed documents in a manner
less burdensome to the subpoenaed party (See Figure
5). For
instance, if the circumstances are appropriate, the
originals may be kept in the subject's office with a written
agreement that the Investigator/Auditor can have access to
the documents at a particular place during specified hours,
and with no interference. The written agreement should also
include a clause allowing access to the documents in the
future. If the documents are to be inspected on site,
prepare an index of all the documents produced.
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Receipts for Books, Records, and
Documents. When it is necessary to take possession of
documentary evidence or property such as books, records,
canceled checks, bank statements, receipt books, invoices,
vouchers, letters, memoranda, or other materials provided
pursuant to a subpoena or furnished voluntarily by an
organization or individual, a signed, dated, and itemized
Document Receipt, EBSA Form 220A, for the material should be
provided upon request [Tab D]. If such receipt is provided,
retain a copy of the receipt in the case file.
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Return of Documents. Upon
return of the described documents to the owner or
responsible individual, ask for the return of the original
receipt and have the party receiving the documents
acknowledge in writing such return. See EBSA Form 220B,
Return of Documents [Tab F].
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Record of Documents Examined.
If the Investigator/Auditor reviews, but does not copy
materials produced pursuant to a subpoena, he/she must
complete a Report of Records Examination, EBSA Form 202C
[Tab G].
14. Documents Covered by the Right to
Financial Privacy Act. The Right to Financial Privacy Act,
12 U.S.C. Ё3401 et seq. (RFPA), preserves the
confidentiality of financial records while at the same time
allowing access for legitimate law enforcement activities. The
RFPA prohibits any agency or department of the United States
from obtaining financial records of a customer from a
financial institution, such as a bank, savings and loan,
credit union, consumer finance institution, or credit card
company, unless the records are reasonably described and 1)
either the customer authorizes such disclosure or 2) the
records are disclosed in response to an administrative
subpoena which meets specific requirements as set forth in the
RFPA.
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Coverage. The RFPA applies only
to financial records of individuals or partnerships of five
or fewer individuals. The RFPA does not protect
corporations, associations, larger partnerships, employee
benefit plans, or other legal entities. When requesting
documents which are not protected by the RFPA it is good
practice to enclose a cover letter to the financial
institution explaining why the RFPA does not apply (See
Figure 8).
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Certification of Compliance
Requirement. Before records may be obtained, the RD must
submit to the financial institution a certificate stating
that the RD has complied with all applicable provisions of
the RFPA (See Figure 9). Good faith reliance by the
employees and agents of the financial institution upon this
certification of compliance absolves the institution of
civil liability for any improper disclosure of records.
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Customer Authorization.
Customers may authorize access to identified records by
giving approval in writing for a period of no more than
three months; such authorization is revocable at any time
before the records are disclosed (See Figure
10).
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Customer Notice Requirements.
Notice must be sent to a customer before the records can be
obtained from the financial institution. The notice must
include a description of the records sought, a statement of
the purpose of the inquiry, and an explanation of the
procedure by which the customer may challenge the government
request in court. Along with the notice, the customer is to
be provided a copy of the subpoena and blank motion and
affidavit forms suitable for filing in court if properly
completed (See Figure 11). The customer may then move to
quash the subpoena. If notice to the customer will seriously
jeopardize the investigation, the required notice to the
customer may be delayed up to 90 days by court order.
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Costs. The RFPA provides that
the government must pay the financial institution any
reasonable costs which are directly incurred in searching
for, reproducing, or transporting the records requested to
be produced.
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Civil Penalties. Violations of
the RFPA may result in a penalty of $100, plus actual
damages, plus punitive damages, plus court costs, plus
attorneys fees, plus investigation by OPM, plus disciplinary
action against the responsible government official.
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Custody of Documents. Keep
documents obtained pursuant to the RFPA segregated, since
there are certain prohibitions against giving the documents
to others, including other government agencies. (See Chapter
20, paragraph 5 and Chapter 32, paragraph 1.e.2).
15. Subpoenas Used in Criminal
Investigations. Section 504 gives the Secretary, or the
Secretary's designee, authority to use its subpoena power in
conducting investigations of violations of Title I of ERISA.
However, EBSA does not use its administrative subpoena power
in Title I criminal investigations. (See Chapter 52).
16. Parallel Investigations.
Caution must be exercised when handling parallel
civil/criminal investigations.
17. Obtaining Documents in the
Possession of a Grand Jury. Obtaining actual grand jury
material, such as transcripts, is very difficult and should
generally be left until after the initiation of litigation.
However, there are methods of obtaining documents which have
been subpoenaed by and are in the possession of a grand
jury. In each instance, a subpoena duces tecum must be
issued to the custodian of the documents, and the custodian
must respond that the requested material is in the
possession of the grand jury. It is important that the
subpoena describe the required documents with as much
specificity as possible. Once the response is received, the
following steps should be taken:
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Ask the custodian (or the
custodian's attorney, if appropriate) to give written
authorization to the U.S. Attorney in charge of the grand
jury, permitting him/her to allow Investigators/Auditors
to examine and copy those documents in the possession of
the grand jury which are asked for in the subpoena.
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If the custodian refuses to
voluntarily permit access to the documents, refer the
subpoena to PBSD or the RSOL with a copy to OE/DFO, with a
request that a "non-6(e) Order" be
obtained. A "non 6(e) Order" is a court order,
which grants permission to Investigators/Auditors to
examine and copy those documents in the possession of the
grand jury, which are asked for in the subpoena. Access to
the documents by this method avoids the restrictions which
would be imposed if disclosure were made pursuant to Rule
6(e) of the Federal Rules of Criminal Procedure, since a
"non-6(e) Order" preserves the
Secretary's independent right of access to such documents.
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If a "non-6(e)
Order" cannot be obtained, the subpoena may be
referred to PBSD or the RSOL with a request to obtain
release of the material pursuant to Rule 6(e) of the
Federal Rules of Criminal Procedure. This rule prohibits
disclosure of any matters occurring before the grand jury
except when directed by a court preliminarily to or in
connection with a judicial proceeding. A strong showing
must be made of particularized need or compelling
necessity. If disclosure of the subpoenaed documents is
obtained pursuant to this rule, restrictions will be
placed upon the use of information obtained (See Chapter
20, paragraph 8).
(Figure 1)
Certified Mail - Return Receipt Requested
Name
Address
Re: Investigation of _________________________
EBSA Case No. XX-XXXXXX
Dear: _________________________
This office is conducting an investigation
of the above-referenced matter pursuant to �4(a)(1) of the
Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. �34(a)(1), to determine whether any person has
violated or is about to violate any provision of Title I of
ERISA. Enclosed is a subpoena which requires you to produce
certain documents and records in connection with that
investigation.
Your personal appearance pursuant to this
subpoena will not be required at this time provided the
documents are produced on or before the date noted in the
subpoena. You will be informed at a later date if your
personal appearance to testify is required. Inasmuch as your
appearance is not now being required, please provide a cover
letter with your response which identifies the documents being
produced. Your cover letter should also state whether a
diligent search has been made for the subpoenaed documents and
that the documents transmitted constitute all documents called
for by the subpoena.
If any documents called for are not
furnished, please list such documents and indicate their
location and the reason for their non-production.
This inquiry should not be construed as an
indication that any violations of law have occurred or as a
reflection upon any person involved in this matter.
If you have any questions concerning your
rights and duties, you may wish to consult counsel. If you
have any questions concerning the subpoena or the documents
required to be produced, please call (name of
investigator/auditor) at (telephone number).
Sincerely,
Regional Director
Enclosure
(Figure 2)
Certified Mail - Return Receipt Requested
Name
Address
Re: Investigation of _________________________
EBSA Case No. XX-XXXXXX
Dear: _________________________
This office is conducting an investigation
of the above-referenced matter pursuant to �4(a)(1)
of the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. �34(a)(1), to determine whether any person has
violated or is about to violate any provision of Title I of
ERISA. Enclosed is a subpoena, which requires your appearance
for the purpose of giving sworn testimony in connection with
that investigation. You are entitled to be accompanied by an
attorney when you testify if you so desire.
This inquiry should not be construed as an
indication that any violations of law have occurred or as a
reflection upon any person involved in this matter.
If you have any questions concerning your
rights and duties, you may wish to consult counsel. If you
have any questions concerning the subpoena please call (name
of Investigator/Auditor) at (telephone number).
Sincerely,
Regional Director
Enclosure
(Figure 3)
Certified Mail - Return Receipt Requested
Name
Address
Re: Investigation of _________________________
EBSA Case No. XX-XXXXXX
Dear: _________________________
This office is conducting an investigation
of the above-referenced matter pursuant to �4(a)(1)
of the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. �34(a)(1), to determine whether any person has
violated or is about to violate any provision of Title I of
ERISA. Enclosed is a subpoena, which requires you both to
produce certain documents and records and to appear for the
purpose of giving sworn testimony in connection with that
investigation. You are entitled to be accompanied by an
attorney when you testify if you so desire.
If any documents called for are not
furnished, please list such documents and indicate their
location and the reason for their non-production.
This inquiry should not be construed as an
indication that any violations of law have occurred or as a
reflection upon any person involved in this matter.
If you have any questions concerning your
rights and duties, you may wish to consult counsel. If you
have any questions concerning the subpoena or the documents
required to be produced, please call (name of
Investigator/Auditor) at (telephone number).
Sincerely,
Regional Director
Enclosure
(Figure 4)
Certified Mail - Return Receipt Requested
Name
Address
Re: Investigation of _________________________
EBSA Case No. XX-XXXXXX
Dear: _________________________
This office is conducting an investigation
of the above-referenced matter pursuant to �4(a)(1) of the
Employee Retirement Income Security Act of 1974 (ERISA), 29
U.S.C. �34(a)(1), to determine whether any person has
violated or is about to violate any provision of Title I of
ERISA. As we discussed by telephone on (date), you agreed to
accept service of the enclosed subpoena, which requires the
production of certain documents in connection with that
investigation.
A personal appearance pursuant to this
subpoena is not required provided the documents are produced
on or before the date noted in the subpoena. Inasmuch as a
personal appearance is not now being required, please provide
a cover letter with your response, which identifies the
documents being produced. Your cover letter should also state
whether a diligent search has been made for the subpoenaed
documents and that the documents transmitted constitute all
documents called for by the subpoena. If any documents called
for are not furnished, please list such documents and indicate
their location and the reason for their non-production.
This inquiry should not be construed as an
indication that any violations of law have occurred or as a
reflection upon any person involved in this matter.
If you have any questions concerning the
subpoena or the documents required to be produced, please call
(name of Investigator/Auditor) at (telephone number).
Sincerely,
Regional Director
Enclosure
(Figure 5)
Certified Mail - Return Receipt Requested
Name
Address
Re: Investigation of _________________________
EBSA Case No. XX-XXXXXX
Dear: _________________________
This office is conducting an investigation
of the above-referenced matter pursuant to�4(a)(1)
of the Employee Retirement Income Security Act of 1974 (ERISA),
29 U.S.C. �34(a)(1), to determine whether any person has
violated or is about to violate any provision of Title I of
ERISA. Enclosed is a subpoena which requires the production of
certain documents and records in connection with that
investigation. Your personal appearance pursuant to this
subpoena will not be required provided the documents as
requested in the subpoena are produced.
To minimize the interference with normal
functioning of your business, we are willing to arrange a
procedure for our access to all subpoenaed documents in a
manner which would lessen the impact on your day-to-day
operations and which would involve the least necessary
expenditure of time and resources for all parties. Therefore,
in lieu of production of all documents at the time and place
specified in the subpoena, we are willing to inspect the
documents at their present location followed by a written
agreement setting forth a procedure for access to all
subpoenaed documents for more detailed inspection and copying.
If you have any other suggestions to reduce the impact of
compliance with the subpoena, we would be willing to consider
them.
To make arrangements for the procedure as
discussed please contact (name of Investigator/Auditor) at
(telephone number) on or before (date). In the absence of any
agreement, such as the one proposed above, we will expect full
compliance with the subpoena at the time and place indicated
therein.
Sincerely,
Regional Director
Enclosure
(Figure 6)
Department of Labor
Employee Benefits Security Administration
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) |
In the Matter of: |
) |
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) |
XYZ Health and Welfare Fund |
) |
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) |
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Philadelphia, Pennsylvania
Friday, August 31, 2002
Deposition of Richard R. Roe taken on
behalf of the Employee Benefits Security Administration in the
above-entitled matter, at the offices of the Department
of Labor, Employee Benefits Security Administration, Room M-300,
3535 Market Street, Philadelphia, Pennsylvania, pursuant to
notice, beginning at 9:13 a.m., before Janet Jones, a notary
public in and for the State of Pennsylvania, when were present
on behalf of the respective parties:
For the Department of Labor:
Samantha Smith, Esquire
Office of the Solicitor
Plan Benefits Security Division
200 Constitution Avenue, N.W.
Room N-4611
Washington, D.C. 20210
For Richard R. Roe:
Stephen Johnson, Esquire
Johnson and Martinez
123 Fourth Street
Philadelphia, Pennsylvania 19102
(Figure 7)
This sworn testimony is being taken in the
matter of [ (case name) ] involving an investigation
undertaken pursuant to section 504 of the Employee Retirement
Income Security Act of 1974 (ERISA), 29 U.S.C. section 1134,
to determine whether any person has violated, or is about to
violate, any provision of Title I of ERISA or any regulation
or order issued thereunder. The witness is appearing here
today in response to a subpoena issued pursuant to ERISA
section 504(c), 29 U.S.C. section 1134(c), which section
expressly incorporates Sections 9 and 10 of the Federal Trade
Commission Act, 15 U.S.C. sections 49 and 50. A copy of this
subpoena will be attached to the transcript as Exhibit
_________________________.
At this time, I would like to call the
witness, and have him/her sworn.
Could you, for the record, please state
your name and home address?
Mr./Mrs./Ms./Miss _________________________, are you
represented by counsel today?
(If so) Could counsel please identify
himself/herself for the record?
(If not) I wish to advise you at this time
that you have a right to be accompanied, represented, and
advised by counsel. This means that you may have an attorney
present and that your attorney can advise you before, during,
and after your examination here today. Do you understand that?
The principal purpose of your testimony is
fact finding, to determine whether violations of ERISA have
occurred or may be occurring. However, information that you
give may be referred to other governmental agencies if the
facts developed constitute violations of other laws.
Mr./Mrs./Ms./Miss _________________________, at this
time I would expressly advise you that any evidence or
testimony you give may be used against you. You may refuse to
answer any question asked you if your answer might tend to
incriminate you or subject you to fine, penalty, or
forfeiture. This right is guaranteed you by the Fifth
Amendment to the Constitution of the United States.
Do you understand what I have just said?
I would like to advise you of the penalty
for perjury contained in 18 U.S.C. section 1621, which
provides that a person who violates this provision shall be
fined as provided under Title 18 or imprisoned for not more
than 5 years, or both. An individual is guilty of perjury if,
contrary to an oath such as you have just taken, he/she
willfully states or subscribes any material matter which
he/she does not believe to be true. I also wish to advise you
of the penalty contained in 18 U.S.C. section 1001, which
provides that anyone who knowingly and willfully makes any
materially false statements or representations in any matter
within the jurisdiction of any department or agency of the
United States shall be fined as provided under Title 18 or
imprisoned for not more than 5 years, or both.
Do you understand what I have just said?
I would like to have the record clear that
you are appearing here today pursuant to subpoena and that no
threats have been made nor have any promises been offered by
me or any other official of the Department of Labor to secure
your testimony and that no immunity of any kind, either
express or implied, can or is being offered in connection with
your testimony today. Is that correct?
You or your attorney may purchase a copy of
the transcript of your testimony from the court reporter. The
court reporter is instructed that the transcript of your
testimony shall not be made available to anyone other than the
parties here present without the express consent of the
Department of Labor.
(Figure 8)
Name of Financial Institution
Address
Re: Name of Investigation
EBSA Case No. XX-XXXXXX
Dear: _________________________
Accompanying this letter is a subpoena
duces tecum directed to the (Name of Financial Institution),
requiring the production of certain specified documents. These
documents are necessary and relevant to the above-referenced
investigation being conducted by this office pursuant to its
responsibilities for enforcement of Title I of the Employee
Retirement Income Security Act of 1974 and are not in the
possession of the Department of Labor.
In our opinion, because the material
requested concerns an account which is not maintained in the
name of an individual or a partnership of five or fewer
individuals, the notice requirements of the Right to Financial
Privacy Act (12 U.S.C. �01 et seq.) do not apply.
If legal counsel for (the Financial
Institution) concludes that the requirements of the Right to
Financial Privacy Act are applicable, we would request
immediate identification of the customer to whom we must
provide notice.
In connection with this subpoena, we wish
to minimize as much as possible interference with the normal
functioning of (the Financial Institution). We would be
agreeable to discussing alternative arrangements for
production of the requested documents. Please have the
responsible officials of (the Financial Institution) or legal
counsel contact the undersigned regarding any question arising
from this subpoena.
Thank you for your cooperation in this
matter.
Sincerely,
Regional Director
Enclosure
(Figure 9)
Employee Benefits Security Administration
Address
Certificate Of Compliance With The Right To
Financial Privacy Act
To:
|
Name and Address of Financial
Institution
|
From:
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Regional Director
U.S. Department of Labor
Employee Benefits Security Administration
Address
|
I hereby certify that the applicable provisions of the Right to Financial Privacy Act of 1978, 12 U.S.C. Ё3401-3422, have been complied with as to the subpoena presented on (date) for the following financial records of (name):
_________________________
Date
_________________________
Regional Director
U.S. Department of Labor
Employee Benefits Security Administration
Address
Telephone Number
Pursuant to the Right to Financial Privacy
Act of 1978, good faith reliance upon this certificate
relieves your institution and its employees and agents of any
possible liability to the customer in connection with the
disclosure of these financial records.
(Figure 10)
Employee Benefits Security Administration
Address
Customer Consent And
Authorization For Access To Financial Records
I, (Name of Customer), having read the
explanation of my rights which is attached to this form,
hereby authorize the (Name and Address of Financial
Institution) to disclose these financial records:
to (Name of Investigator(s)/Auditor(s)) for
the following purpose(s):
I understand that this authorization may be
revoked by me in writing at any time before my records, as
described above, are disclosed, and that this authorization is
valid for no more than three months from the date of my
signature.
_________________________
Date
_________________________
(Signature of Customer)
_________________________
(Address of Customer)
(Figure 11)
Name
Address
Dear (customer name):
Records or information concerning your
transactions held by the financial institution named in the
attached subpoena are being sought by the U.S. Department of
Labor, Employee Benefits Security Administration, in
accordance with the Right to Financial Privacy Act of 1978, 12
U.S.C. �01-3422, for the purpose of determining
whether any individual has violated or is about to violate any
provision of Title I of the Employee Retirement Income
Security Act of 1974 (ERISA).
If you desire that such records or
information not be made available, you must:
-
Fill out the accompanying motion paper
and sworn statement (as indicated by the instructions
beneath each blank space) or write one of your own, stating
that you are the customer whose records are being requested
by the U.S. Department of Labor, and giving either the
reasons you believe that the records are not relevant to the
legitimate law enforcement inquiry stated in this notice or
any other legal basis for objecting to the release of the
records.
-
File the motion and sworn statement by
mailing or delivering them to the Clerk of any one of the
following United States District Courts:
-
the location of the financial
institution;
-
the residence of the
customer;
-
the District of
Columbia; or
-
the location of the employee benefit
plan.
It would simplify the proceeding if you
would include with your motion and sworn statement a copy of
the attached subpoena as well as a copy of this notice.
-
Serve the U.S. Department of Labor,
EBSA, by delivering a copy of your motion and sworn
statement, in person or by registered or certified mail, to
(Regional Director, address).
-
Be prepared to come to court and
present your position in further detail.
-
You do not need to have a lawyer,
although you may wish to retain one to represent you and
protect your rights.
If you do not follow the above procedures,
upon the expiration of ten days from the date of service or
fourteen days from the date of mailing of this notice, the
records or information requested therein may be made
available. These records may be transferred to other
government authorities for legitimate law enforcement
inquiries, in which event you will be notified after the
transfer.
Very truly yours,
Regional Director
U.S. Department of Labor
Employee Benefits Security Administration
Address
Telephone Number
Enclosures: Subpoena
Motion Form
Sworn Statement Form
(Figure 11)
1. Except where signatures are required,
the indicated information should be either typed or printed
legibly in ink in the spaces provided on the attached motion
and sworn statement forms. The information required for each
space is described in parentheses under each space to be
completed.
2. The most important part of your
challenge application is the space on the sworn statement form
where you must state your reasons for believing that the
financial records sought are not relevant to the legitimate
law enforcement inquiry stated in the attached notice. You may
also challenge the Department of Labor's access to the
financial records if there has not been substantial compliance
with the Right to Financial Privacy Act, or for any other
reasons allowed under the law. You should state the facts that
are the basis for your challenge as specifically as you can.
3. To file your challenge with the Court,
either mail or deliver the original and one copy of your
challenge papers together with cash, certified check, or money
order in the amount of the Court's filing fee.
4. One copy of your challenge papers
(motion and sworn statement) must be delivered or mailed (by
registered or certified mail) to the government official whose
name appears on the Customer Notice.
5. If you have further questions, contact
the government official whose name and telephone number appear
on the Customer Notice.
(Figure 11)
In The United States District Court For The
_________________________ District Of (Name of District)
(State in which Court is located)
|
) Miscellaneous No. _________________________ |
_________________________ |
) (Will be filled in by Clerk) |
(Your Name) |
) |
|
) |
Movant |
) Motion For Order |
|
) Pursuant To Customer |
v. |
) Challenge Provisions |
|
) Of The Right To Financial |
U.S. Department of Labor |
) Privacy Act of 1978. |
|
) |
Respondent |
) |
_________________________ (Your Name) hereby moves this
Court, pursuant to section 1110 of the Right to Financial
Privacy Act of 1978, 12 U.S.C. �10, for an order preventing
the government from obtaining access to my financial records.
The agency seeking access is the U.S. Department of Labor,
Employee Benefits Security Administration. My financial
records are held by
_________________________
Name of Financial Institution
In support of this motion, the Court is
respectfully referred to my sworn statement filed with this
motion.
Respectfully submitted,
|
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(Your Signature)
|
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(Your Name)
|
|
(Your Address)
|
|
(Your Telephone Number)
|
(Figure 11)
I have mailed or delivered a copy of this
motion and the attached sworn statement to
_________________________
(Name of Official listed at item 3 of Customer Notice)
_________________________ on (Date)
_________________________
(Your Signature)
(Figure 11)
In The United States District Court For The
_________________________ District Of (Name of District)
(State in which Court is located)
|
) Miscellaneous No. _________________________ |
_________________________ |
) (Will be filled in by Clerk) |
Name |
) |
|
) |
Movant |
) Sworn Statement of Movant |
|
) |
v. |
) |
|
) |
U.S. Department of Labor |
) |
|
) |
Respondent |
) |
I, _________________________ (Your Name)
_________________________, am presently/was previously a
customer of _________________________ (Name of Financial
Institution) _________________________,
and I am the customer whose records are being requested by the
Government.
The financial records sought by the U.S.
Department of Labor, Employee Benefits Security
Administration:
are not relevant to the legitimate law
enforcement inquiry stated in the Customer Notice that was
sent to me because
Or
should not be disclosed because there has
not been substantial compliance with the Right to Financial
Privacy Act of 1978 in that
Or
should not be disclosed on the following
other legal basis
I declare under penalty of perjury that the
foregoing is true and correct.
_________________________
Date
_________________________
(Your Signature)
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