Government Investigations: How to Protect Your Company at Every Stage

A company whose premises are searched by government investigators must designate a single point of contact to accompany the investigators, review the search warrant or administrative inspection authority to determine the legal scope of the search, and ensure that employees understand their rights without interfering with a lawful search, and white collar investigations counsel advising on a government investigations response must evaluate whether the warrant accurately describes the premises to be searched and the items to be seized.

A company that receives a grand jury subpoena or a civil investigative demand in a government investigation must assess the scope of the document production obligation, implement a litigation hold that preserves all potentially responsive materials, and identify documents that may be protected by the attorney-client privilege or the work product doctrine, and SEC investigations counsel managing a government investigations document production must evaluate whether the subpoena's document requests are appropriately limited to matters within the government's statutory authority.

A company that produces documents in response to a government investigations demand must conduct a privilege review before each production to identify and withhold documents protected by the attorney-client privilege or the work product doctrine, and internal investigation services counsel overseeing the privilege review process must evaluate whether the privilege review protocol is designed to identify all potentially privileged documents.

A company that collects electronic documents and data in response to a government investigations demand must ensure that the collection process creates a forensically sound copy of the original data and that the chain of custody from collection through production is documented, and eDiscovery counsel advising on the forensic aspects of government investigations document production must evaluate whether the collection methodology has been validated by a qualified forensic examiner.

A company that disagrees with a regulatory agency's preliminary findings in a government investigation has the opportunity to present its legal and factual defenses through a proffer, a Wells submission, or other pre-enforcement communication, and anti-corruption investigations counsel preparing a company's defense submission in government investigations must evaluate whether the company's factual presentation is consistent with the documents that have been produced.

A company that faces potential criminal liability in a government investigation must demonstrate that the allegedly unlawful conduct does not satisfy the elements of the charged offense, that the company lacked the requisite intent, or that the company's compliance program was sufficiently robust to support a defense of good faith, and white collar crime counsel advising on the criminal defense aspects of government investigations must evaluate whether the company's officers or employees can claim reliance on the advice of counsel.

A company that commits to implementing compliance program improvements as part of the resolution of government investigations must document those improvements in a manner that satisfies the government's monitoring requirements and demonstrates that the remediation is genuine rather than cosmetic, and corporate compliance and risk management counsel advising on post-investigation remediation must evaluate whether the compliance program enhancements address the specific deficiencies that the government investigators identified.

A company that reaches a settlement, consent decree, or deferred prosecution agreement to resolve government investigations must carefully review the terms to ensure that the resolution does not include language that admits liability in a manner that could be used against the company in subsequent civil litigation or that imposes ongoing compliance obligations that are impossible to satisfy, and consent decrees counsel reviewing a government investigations resolution document must evaluate whether the finality language adequately protects the company from additional government investigations into the same conduct.