What to Do When the Government Calls (or Knocks Down the Door)
Few governmental actions are more intimidating and unsettling than the delivery of a grand jury subpoena, an unexpected call from a government investigator, or the execution of a search warrant. Such action usually means the onset of a government investigation. Frequently, companies and their employees are unaware of their rights in these situations. Read on to understand your basic rights, and how best to initially respond to government actions.
Three overriding principles should guide you in all areas of contact with the government:
- The company and its employees have an absolute right to consult with legal counsel before taking any action.
- The company and its employees must not alter or destroy any documents relating to the investigation or take any action that would improperly hinder the investigation.
- In any conversation with a government agent, you should either decline to answer, or if you do answer, tell the truth.
Government Investigation Methods
Government investigations frequently involve the following three points of contact between the government, the company and its employees:
The government agency or grand jury may issue a subpoena to a company or its employees for certain records. If this occurs, the company should take the following actions:
- Legal counsel should immediately analyze the scope of the subpoena. Often, the government agents draft subpoenas so broadly that the subpoena can be fairly characterized as a "fishing expedition." The government attorney supervising the investigation may agree to narrow the scope of the subpoena to prevent the company from filing a motion to quash to the subpoena.
- The company should immediately direct its employees to maintain all potentially relevant records and not to alter the documents in any way. The company should also suspend any normal document destruction procedures under the company's record retention program.
- The company should appoint a custodian of records who will be responsible for compliance with the subpoena.
- The custodian of records should prepare a search memorandum that is distributed to all employees who may have relevant records.
Government agents conducting an investigation may seek to interview company employees. The company should advise its employees that:
- They have an absolute right to decline such interview requests. If the employee decides not to submit to the interview, he or she should politely, but firmly, decline to be interviewed.
- The investigator may indicate that if an employee does not agree to the interview, the investigator will have a subpoena issued to the employee to testify before a grand jury. The employee should know that even if he or she submits to the interview, the employee may still be subpoenaed to testify before a grand jury regarding the subject of the interview.
- If the employee agrees to the interview, the employee has a right to have legal counsel present during the interview.
- Under all circumstances, if the employee decides to speak to the government investigator, he or she must tell the truth. Failure to do so itself may be a violation of the law and will cause more difficulties than being truthful or declining to answer a question.
- The employee should obtain a copy of any statement that the employee signs.
A search warrant permits government agents to review and remove specific documents from the company. Although a company's rights with respect to a search warrant are more limited than with respect to a subpoena, the company should take the following steps:
- The company should designate a single employee for dealing with the government agents.
- The designated employee should obtain and review a copy of the search warrant and the affidavit in support of the warrant. Ask the government agent to delay execution of the search warrant until the designated person has reviewed the warrant and consulted with counsel.
- Identify all government agents who are participating in the search.
- Monitor the search to ensure that the agents adhere to the specific limits of the search. The designated person should never "consent" to the search of any specific place not identified in the warrant. This could result in the expansion of the search beyond what the warrant permits. However, the designated person should not attempt to interfere with the search. The designated person should simply state his or her objection to the search of any particular area not covered by the warrant.
- The designated person should instruct all employees not to move or tamper with any objects or documents subject to the search. The employees, however, should take detailed notes that identify the files searched. Employees should be instructed that while they must cooperate in the search, they do not have to answer any questions unrelated to the search.
- Ask the agents to allow the company to make copies of any records taken. The company may need these records for continuing business operations and this knowledge will be vital to the company's legal representation relating to the investigation.
- Obtain a complete inventory of all property taken before the agents leave the company.
Each step in the investigation can present numerous unique problems depending on the particular facts. This creates the possibility that the company or its employees may forfeit certain rights or advantages without knowing about them. The company may need to obtain legal advice prior to responding to any aspect of a government investigation.