Wednesday, 02 October 2019 13:57

What To Do When the Government Comes Knocking

Written by Bill Brammell, Partner, DBL Law*

You’re working away one busy afternoon when you see a barrage of government agents entering the building. You discover they are there to serve a search warrant. Next thing you know they are scouring your computers, filing cabinets and interviewing employees. What should you do?

How you respond depends largely on how prepared you and your company’s management team are. Businesses large and small, highly regulated or not, are subject to investigation, or search. This article covers what you should know about investigations and the steps you can take now to prepare your company in the event the government comes knocking.

Understanding Investigations:  Why The Government Might Come Knocking

Investigations are the first step in the criminal justice process. Most often prosecutors or agents institute investigations to gather evidence.  Investigations might be criminal, while others might be civil or regulatory. No reason to fret, however, if your company is part of an investigation as it may not be a suspect but just a witness or may just have helpful information. Criminal investigations are often carried out through the use of search warrants, and both criminal and civil investigations may be carried out using subpoenas.

Search Warrants. A search warrant is a judge’s order that authorizes the search of a place or person and items to be seized. The government must demonstrate probable cause to obtain a search warrant and it can be presented without warning. When agents serve a search warrant, employees should be trained to ask for a copy of the warrant and a receipt of property taken during the search, and to notify counsel immediately. Employees should never interfere with the search or engage in conversations with agents.

Subpoenas. A subpoena is a writ or order commanding a person to appear or produce documents. Upon receiving any subpoena, counsel should be notified immediately.  When responding to subpoenas for documents, businesses should appoint a single person to coordinate the collection efforts, and each and every document should be reviewed by a lawyer before it is produced. Counsel will ensure that the request is not overly broad and that privileged documents, or documents outside the scope of the investigation are not turned over.

Employees may also be subpoenaed for testimony. Importantly, the government has no obligation to notify a company before issuing such a subpoena. If contacted, employees should notify in-house counsel and the company’s management immediately. In some situations it may also be advisable for the employee whose testimony is sought to retain independent counsel.  In such a circumstance, the company attorney should also be present any time the employee is interviewed or gives testimony.

Steps to Take Now to Prepare In the Event the Government Comes Knocking

Have a Plan. Investigations arise when least expected. Companies can plan for investigations by making sure they have an active compliance department, conduct routine internal investigations, properly train employees, and have a good working relationship with in-house or outside counsel.

Make Sure Your Compliance Team Keeps Up to Speed. Compliance teams should know what the company’s risks are and keep abreast of the law. Employees should know of these risks and be trained on new laws and regulations as they arise. Proper policies and procedures should track changes in regulations and laws.

Conduct Internal Investigations When Necessary. Internal investigations are a helpful tool that should be conducted regularly to ensure compliance with laws and regulations. This is a great way to demonstrate to those looking into your company’s practices that you take the law seriously, and work proactively to ensure compliance with it. To ensure an objective review and unbiased opinion, your company might consider engaging an outside company to conduct the investigation.

Train Your Employees. Employee training should be kept up to date, and employees should be routinely retrained when policies, procedures, or laws change. Employees should, specifically, be trained on how to respond if a government agent contacts your business, or presents a search warrant or subpoena. Finally, employees should know who to report this contact with and that they have the right to obtain independent counsel.

What to Do When it Happens

Stay calm.  Determine who is knocking and why they are there. Immediately inform management and the company’s counsel that you have visitors. Do not do anything to interfere with the investigation, cooperate, and be polite.  Investigations are unexpected, and there are a million ways that this could occur. While it is impossible to plan for every scenario, following these helpful tips will definitely put you in a better place if the Government ever does come knocking.

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*Bill Brammell is a partner in DBL Law’s Louisville office, practicing primarily in the areas of civil and commercial litigation, including defending employment discrimination claims, administrative law, contract negotiation and white collar criminal defense. He is a member of the KYSHRM State Council and was a session co-presenter at this year’s KYSHRM State Conference with fellow DBL Law partner Kelly Holden. Erin Shaughnessy also contributed to this article.

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