Get your lawyer on board immediately. You need someone keeping an eye on the legal issues you currently face or may face in the future. All company actions and statements in response to the crisis should be vetted by your lawyer
Suspend Electronic Communications.
Email communications within your company are discoverable. Don't create evidence for opposing parties. An email should be sent to all employees who communicate via email within the company stating that the topic of the crisis is off limits for email communications until further notice. Employees and consultants handling the crisis who need to communicate via email should copy legal counsel on every email, and each such message should carry this label at the bottom:
This email message is for the sole use of the intended recipient and may contain confidential and privileged information. Any unauthorized review, use, disclosure or distribution is prohibited. If you are not the intended recipient, please contact the sender by reply email and destroy all copies of the original message.
Suspend Internal Memos About the Crisis
Internal memos are discoverable. In whatever manner is most effective, communicate to all pertinent employees that, on orders of legal counsel, issues pertaining to the crisis are not to be communicated via memo.
Prohibit Unnecessary Discussion Regarding the Crisis
Unless communications take place with legal counsel present, all communications are discoverable. If employees are required to testify about the crisis, they may be forced to reveal the specifics of any discussions they had regarding the subject, including the identities of the participants in the discussion. The safe course is to prohibit all unnecessary communications regarding the crisis within your company.
Suspend Records-Destruction Activity.
Immediately suspend your records-destruction procedures until your legal counsel authorizes their resumption. You are legally obligated to preserve evidence if litigation or a criminal investigation is anticipated. Destruction of evidence is a serious charge whether made in a civil or criminal proceeding.
Back Up Your Hard Drives and Store Offsite.
Electronic discovery has become commonplace. To avoid disruptions to your business in the event of a subpoena, search warrant, or demand for production of your computer hard drives, immediately back them up on suitable media and store the back-ups offsite.
Identify, Segregate, and Secure Pertinent Documents.
All documents pertaining to the crisis will eventually be required. Do not wait for the subpoena, demand for production, or law enforcement serving a search warrant to begin collecting these documents. The disruption to your business will be minimized if all pertinent documents are collected and secured in segregated files in an organized and thorough manner before the crisis escalates. An employee who can verify and, if needed, testify about the thoroughness of the collection effort should be designated the custodian of these records. Within these segregated files, further segregate and clearly label all attorney-client privileged documents.
Have Legal Counsel Interview Pertinent Employees.
While memories are fresh and unaltered by gossip and communal reflection, your lawyer should interview all employees with knowledge pertaining to the crisis. Having the lawyer conduct the interviews should guarantee the information elicited will remain confidential. If possible have outside counsel perform this task to avoid the possibility your corporate counsel will become compromised and the interviews become discoverable.
Report the Crisis to Appropriate Governmental Entities.
If your business is subject to oversight by a governmental agency or agencies, report the crisis immediately. Even if such reporting is not required, keeping them in the loop about developments will help to avoid antagonizing them.
Contact Your Insurance Company.
Provide early notice to your insurance carrier to avoid a denial of coverage due to untimely reporting. Some insurance coverage is triggered if there is even a possibility that coverage might apply, so even if you are certain the crisis does not trigger coverage, tender the matter to your insurer and let it provide a written denial.