June 4, 2012

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A visit from law enforcement agents bearing badges and guns and a warrant is an unnerving experience. It’s supposed to be. But such a visit should not cause you or your employees to panic – and it won’t if you are prepared.

DEVELOP A COMPLIANCE PLAN

A good compliance plan should anticipate the possibility that one day your company could be the subject or target of a criminal investigation, and that investigation could include a surprise search of your files and requests to interview your employees. Your employees should be trained to know what to do if and when an agent arrives with a warrant.

ELEMENTS OF A PLAN

Designate a coordinator. Designate a senior executive responsible for alerting counsel, for handling initial communications with law enforcement agents and the press, and for calming nervous employees.

Criminal defense counsel. Identify experienced criminal defense counsel who can take over communications with law enforcement as soon as possible, ideally local counsel who can be on site as the search is proceeding.

Initial checklist. Provide direction to the executive responsible for managing the search and dealing with the government, including directions to:

• Contact counsel and, if counsel is available, ask the agents to delay the search until counsel arrives at the facility;
• Courteously ask the agents for their cards, a copy of the search warrant and the affidavit supporting it (they should provide the former, but the latter may be under seal), the name of the prosecutor overseeing the investigation, and any other information they are willing to share about the nature of the investigation;
• Review the warrant to determine its scope;
• If the agents express an interest in interviewing employees, courteously request that they not do so at this time;
• Show the agents the location of the files containing the information described in the warrant, accompany the agents around the facility as they gather documents, remove privileged materials from the documents requested, keep a record of all files removed from the premises (and if feasible make copies of files before they are removed) and obtain an inventory of documents removed, signed by the agent;
• Explain to employees that while they may speak to investigators if they desire, they may decline to speak to investigators, that they are entitled to be represented by an attorney during an interview and that the company will provide an attorney for them.  You should not direct employees not to talk to investigators, because this could be regarded as obstructing the investigation; and
• After the agents have left, debrief employees on their observations and any communications with the agents.

Communications plan. Designate a person responsible for responding to immediate inquiries from the press, customers, and business associates, and developing a communications plan for future inquiries.

Document hold. Put a “document hold” in place to ensure that relevant files that were not removed by the agents are not destroyed. A document hold directs employees to preserve documents and suspends document preservation policies that call for the automatic destruction of hard copy and electronic files.