July/August 2009 / Cover Story
Steps to Take When the Government Comes Calling
Companies usually find out they are under federal investigation when either a subpoena or a search warrant is served. A search warrant is issued by a magistrate and requires probable cause. Search warrants permit inspection of records and seizure of documents. Subpoenas seek documents and/or testimony, and they specify the scope of the information sought and provide a time period to respond. They are issued to determine whether or not there is probable cause to believe a crime has been committed.
If your company receives either a search warrant or a subpoena it must take several steps immediately. Have counsel initiate contact with the government and try to get as much information as possible about the investigation. Communicate with employees about the situation, but remember that memos or email could be discoverable. Be cautious.
Act to preserve all company documents, records and files. This is the best way to demonstrate that you are taking the investigation seriously and acting in good faith. It may prevent an obstruction of justice charge if documents are inadvertently destroyed. Determine whether any current or former employees need to retain separate counsel and whether the company will pay their legal fees. Prior to sharing information with individual counsel for employees, enter into a joint defense agreement to ensure that communications are protected.
