RESPONDING TO SURPRISE LAW ENFORCEMENT ACTIONS
For those companies that do not commonly receive subpoenas, receipt of a subpoena from a law enforcement or regulatory agency should be taken as a serious event requiring a careful response. Similarly, “surprise interviews” by agents can pose legal risks to the employees and to the organization.
RESPONDING TO A GRAND JURY, ADMINISTRATIVE OR REGULATORY SUBPOENA* If a law enforcement agent attempts to deliver a subpoena in person to the office, do not interfere with or impede agent*s efforts to serve the subpoena. Take the subpoena and end the encounter promptly.
o You should be on guard that the delivery of the subpoena does not turn into an in-person interview. If the agent begins asking questions while delivering the subpoena, do not engage in conversation. See the accompanying list on responding to surprise government interviews.
* Review the subpoena, including the *definitions* section and time period covered, to determine the entity targeted by the subpoena and the scope of the subpoena.
* Promptly notify officers, employees, contractors and service professionals (such as outside lawyers and accountants) who may possess the responsive documents listed in the subpoena and detail what is to be produced.
* Issue a *Hold Notice* to all relevant personnel enumerating the categories of documents that need to be preserved, and keep a record of the Hold Notice and the people who were provided the Hold Notice.
* To the extent the subpoena calls for electronically stored information (*ESI*), such as computer files and emails, promptly notify your IT personnel and involve them in the compliance efforts. Take particular note of procedures regarding the creation and retention of backup data.
* Suspend any scheduled document destruction or ESI deletion protocols. Turn off any *auto-delete* programs to insure that
all electronic files are preserved.
* Strictly prohibit any destruction or alteration of any documents that arguably fall within the scope of the subpoena.
* Work with in-house or outside counsel to establish protocols to collect responsive documents from company personnel in a systematic process.
* Where electronic files are at issue, it may be appropriate to work with computer forensic specialists to make electronic copies of data.
* For a DOJ criminal subpoena, legal counsel should contact the prosecutor named on the subpoena to determine the status of the organization -- *witness,* *subject* or *target.*
* For an SEC or CFTC subpoena, obtain a copy of the Formal Order of Investigation from the SEC or CFTC attorney to assist in determining the scope of the investigation.
RESPONDING TO A SURPISE INTERVIEW ENCOUNTER WITH LAW ENFORCEMENT AGENTS* Do not panic; be polite to the authorities; and be prepared to assert your rights.
* Individual employees and their employers are usually best served by having legal representation in connection with government interviews.
* Ask the law enforcement agent the subject of the inquiry.
* Politely decline to be interviewed at that time by telling the agent that you need to speak with your attorney before answering the agent*s questions.
* Ask the agent for his or her business card or contact information, so that your lawyer can contact the agent in the future.
* Any statements made are not *off the record,* and can later be used against you and your employer.
* The law enforcement agent may try to convince you to answer the questions at that moment by saying things like *it will only take a few minutes* or *do you mind answering the questions since I*m already here?* Do not give in to the pressure.
* You have no obligation to answer the agent*s questions and should not allow yourself to feel pressured to do so.
* Know that the law enforcement agent is permitted to lie to you in order to carry out law enforcement objectives. Do not assume that the agent is telling you the truth.
* As soon as the agents depart, immediately advise your personal attorney or company counsel of the agent*s inquiry.
* Meet with an attorney to discuss the subjects that the agent wishes to question you about. After consultation with an attorney, you may permanently decline to answer the agent*s questions.
* If you decide to meet with an agent, it is best to prepare for an interview so that the issues to be covered by the questions are fresh in your mind. False statements to a government official in the course of an official investigation may be prosecuted as criminal violations.
* If you later determine to meet with the agent and answer questions, it is best to do so with your attorney present. Your attorney can take notes in order to make a record of the questions and answers, and also protect you from any pressure applied by the law enforcement agent.
RESPONDING TO THE EXECUTION OF A SEARCH WARRANT AT YOUR BUSINESS OR HOME* Do not panic; be polite to the authorities; and be prepared to assert your rights.
* Do not interfere with or impede government agents executing a search warrant.
* Contact legal counsel or a designated person immediately, preferably someone with experience in government investigations, and put that person in charge of communicating with the authorities.
* Identify and meet with the lead agent. Ask to see the law enforcement official*s credentials to confirm that the individuals are authorized government representatives. Request business cards from the agent(s) leading the search.
* Also ask for the name and contract information of the prosecutor assigned to the case.
* Request copies of any warrant and supporting affidavit, and transmit them to counsel or the designated person immediately. Ask what crime or conduct is being investigated.
* Scrutinize the search warrant to determine the places where the agents are permitted to search and the items they are permitted to seize.
* Confirm that the address of the search location listed in the warrant is the same as the address of the place being searched. If not, inform the agents know they are searching the wrong location.
* As agents are conducting a search of the business premises, designate a person in each area to keep a record of locations searched, documents, data and other items seized, and comments made by agents during the search.
o If possible, arm each designated person with a cell phone with video capabilities, and direct the person to create a video record of the agents conducting the search.
* Politely notify government agents if they search areas not covered by the warran,t or if they review and seize materials covered by the attorney-client privilege.
* Do not consent to a search of premises or seizure of items not covered by the warrant.
* Immediately instruct all employees not to discard, alter, or destroy any documents, electronic data or other information that may be called for by the warrant. Confirm this instruction in writing and retain this for your records.
* Request on-site copying of essential documents and electronic data being seized by government agents. Law enforcement agents may not agree.
* Keep a comprehensive list of all documents, electronic data and other items taken by government agents.
* Seriously consider sending non-essential personnel home for the day to minimize the pressure to submit to interviews.
o Law enforcement agents will often seek *voluntary* interviews of employees present in the office at the time the search warrant is being executed, and those employees will feel pressure to submit to interviews.
o Company counsel should advise employees of their rights and responsibilities regarding requests by government agents for interviews.
o Individual employees and their employers are often best served by having legal representation in connection with government interviews. Jump to *Surprise Interview* guidelines.
* Do not respond to the media inquiries (or anyone else) without first consulting legal counsel.