What to Do When the Government Calls (or Knocks Down the Door)

Being part of a government investigation is a difficult time for any company and its employees. It causes anxiety and raises many unanswered questions, but being proactive and prepared helps make the situation a lot more tolerable. With advanced planning and involvement from counsel, the risk caused by governmental visits is lessened. Companies should have plans in place for such unexpected events and should educate employees on what to do so that some of the unpredictability and trauma of the event, including potential civil rights issues, can be lessened.

Reasons for the Visit

There are a few different reasons for a government investigator to make an unexpected visit. They typically involve:

• Subpoenas
• Interviews
• Search warrants

Subpoenas

A subpoena is an order calling for either a witness to appear and testify in court or for a production of documents. Although a civil subpoena may appear to be similar to a grand jury subpoena, there is a key difference: a grand jury subpoena indicates that a criminal investigation is in progress that could have serious consequences; law enforcement has more power than a civil litigant. That does not mean that civil investigations should be treated any less seriously. Investigations can be concurrent or a civil investigation can turn into a criminal investigation at any time. Regardless of what kind of subpoena is involved, there are general actions to take when responding to a subpoena in the key areas of negotiation and document maintenance, preservation, and production.

Negotiations

Because U.S. regulatory law is very broad, the subpoena will likely be overly inclusive. Legal counsel can try to negotiate the scope of the subpoena. Additionally, counsel can also negotiate the time of compliance and the production protocol and format of the documents.

Document Maintenance, Preservation and Production

The company should take appropriate steps regarding the preservation, maintenance, and production of the documents, including the following:

• Inform employees of the investigation and instruct them to preserve responsive documents.
• Conduct document review and identify relevant documents.
• Designate a non-attorney custodian of the documents.
• Suspend all company document retention policy purges.
• If the subpoena involves testimony of a witness, determine who will testify.

Interviews

Employee interviews are a good way for government agents to obtain information for the investigation. Companies and their employees should be aware of certain rights and responsibilities regarding investigative interviews such as the right to refuse an interview request and the right to counsel prior to an interview decision, and the right to counsel during an interview.

However, employees should be cautious when contemplating an interview because the employee has no control over the proceedings. An unprepared employee could inadvertently say something incriminating during the interview and could be unaware that their statements may prompt a subpoena or warrant. Even when you are not under oath, lying to a government agent is illegal under federal law. However, agents can mislead and outright lie to interviewees. Additionally, the interview does not have the safeguards of court testimony or a deposition because there is not a court reporter present. Therefore, if an employee consents to an interview, counsel typically advises obtaining a copy of the signed statement.

Search Warrants

A search warrant enables government agents to search and seize property (documents, computers, and related data) described in the warrant, thought to be relevant to the investigation. There are certain actions that a company can take regarding search warrants, during various steps in the process.

Before the Search

• Notify counsel immediately.
• Designate a single employee as the liaison for the government agents.
• The designated employee should request a copy of the warrant and submit it for attorney review.

During the Search

• Instruct employees not to hide, move, or tamper with objects subject to the search.
• Take detailed notes of the visit.
• Safeguard all records.
• Do not consent to every search; make sure it is within the scope of the warrant.

After the Search

• Request a list of everything that was removed during the search.
• Request a copy of any document that the government requests.
• Preserve security footage of the visit.

Know your Rights

Is there anything more intimidating than having a government official unexpectedly knock on your company's door? Find out about protecting your civil rights from an experienced attorney. If your rights have been violated, an attorney in your area can help you get started with your claim.