Federal Search & Seizure What to do When the Government Raids the Plant or any Business Beau James Brock Manasseh, Gill, Knipe & Belanger Dorothy (Dee) M. Taylor Liskow & Lewis Pauline F. Hardin Jones Walker, LLC.

Government Investigations Investigations can be difficult to deal with because: You often do not know what triggered it. It could be a “whistleblower” complaint, an audit result, an initiative focusing on a particular issue, etc. Initially, you may not know whether your company and/or its employees are viewed as “targets” or merely as witnesses.

Government Investigations Tools of Government Investigators Search Warrant Catch a sample Find a particular item in a particular place Grand Jury Request for interviews Surveillance

Investigative Tools Search Warrant: a writ issued by a judge or magistrate that allow agents to search and seize tangible property (hardcopy and electronic) described in the warrant and located in a specifically identified area in the warrant. Be polite and cooperative, but do not consent to a search outside the scope of the warrant. Advise employees not to hide, destroy or alter documents.

The Search Warrant in Action No Affidavit is turned over to you. No split samples are provided. Have your environmental section perform them. No photos of where they searched given to you. No video given to you. They will ask for greater consent beyond the warrant. (like their home)

They are Leaving with… (Beau) Computers. Mirroring hard drives. Documents. Physical Evidence. Your Security tapes. Samples.

Search Warrant Interviews (BEAU) The Agents’ round up. “It’s a crime scene – and they are witnesses.” The Art of Deflection – not now…cooperate, later… No Miranda…

What else is coming next…(DEE) Anticipatory Search Warrants. Employees consenting to other searches. Greater surveillance. Consensual phone monitoring. Confidential Informants still there. Mr. Manager, “I just got served with a G.J. subpoena, what do I do?”

Investigative Tools (PAULINE) Search Warrant: “Do’s” Identify the lead agent and establish a line of communication. Ask the lead agent to wait until legal counsel is contacted and arrives to start the search (unlikely to agree). Request an initial sit-down with lead agent to discuss location(s) of documents identified in warrant. Fax or email copy of warrant to legal counsel. Request to inspect, and make record of, all agents credentials. Designate a representative to liaison with agents conducting search. Identify agent with IT responsibility and assign agent a company IT specialist.

Investigative Tools (Pauline) Search Warrant: “Do’s” Record agents’ responses to all requests and other communications—if possible. Try to negotiate procedure for copying items seized; at a minimum, obtain detailed receipt of seized items not copied. Request to close down business operations for the day. Notify all employees of unfolding events, whether they can leave for the day, their rights to speak (or not speak) with the agents, and right to await the arrival of counsel before deciding whether or not to do so.

Investigative Tools (DEE) Grand Jury Subpoena: A grand jury subpoena means there is a criminal investigation underway that might have very serious consequences. Agent(s) may serve the subpoena at an employee’s home instead of the workplace. It may seem like a civil subpoena, but it is not. Law enforcement has more power than any civil litigant. The agent serving the subpoena has consulted an Assistant United States Attorney, and the government has a legal and tactical plan. In a grand jury proceeding, a dispute might lead to an indictment for obstruction of justice or witness tampering.

Investigative Tools (BEAU) Grand Jury Subpoena: BEWARE: The agent serving the subpoena often will have preconceived ideas of what the “truth” is. For this reason, you should advise your client to never talk to agents without representation. Keeps the agent from catching you off guard and without benefit of any discovery or a legal strategy. Keeps the agent from seeking information, through friendly questions, while waiting to serve you with the subpoena. Talking to an agent without adequate preparation can complicate the situation. Lack of recall or precision could be interpreted as obstruction of justice or covering up.

Investigative Tools (DEE) Grand Jury Testimony: The witness’ lawyer is not entitled to be present in the grand jury with their client, but they can be present outside of the grand jury room and the witness can request to speak with them at any time. It is extremely rare to explain away a problem by testifying before a grand jury. The landscape of U.S. criminal cases is littered with individuals who have complicated their problems by testifying in the grand jury. Bottom line - Call legal counsel: Responding to a subpoena for grand jury testimony requires complex analysis that should be handled by experienced criminal defense counsel.

Investigative Tools (P) Request for Interviews: Inform employees through training about government visits and inform them that:. “Investigators have the right to contact you and to request an interview.” “You have the right to speak with investigators and to request a time and place for this interview which is convenient to you.” “You also have the right to decline to be interviewed.” “You have the right to consult with legal counsel prior to deciding whether to submit to an interview. The company has agreed to pay the costs of this consultation, and to recommend an attorney if you desire. You also have the right to retain your own attorney.”

Investigative Tools (P) Request for Interviews: For employee that consent to be interviewed, inform them that: “You have the right to have an attorney present during the interview, to confer with an attorney in advance, and to terminate the interview at any time.” “Statements made to investigators may constitute legal admissions, which may later be used as evidence against you, the company, or both, in legal proceedings.” “Remember that you should TELL THE TRUTH, and should state only matters you know to be a fact. A false statement to an investigator may constitute a criminal offense.” “You have the right to counsel before you sign any written statements.”

Investigative Tools (BEAU) Debriefing Interviewed Employees: Afterwards, counsel for the company should ask them: What the agent told them about the investigation. Whether the agent identified the targets of the investigation. What the agent told them about any alleged wrongdoing. What questions the agents asked: The questions asked are just as important as the interviewee’s answers since the questions can help counsel determine the focus and breadth of the investigation. What answers they gave the agent.

The Best Prevention is a Plan Train employees about what to do in the event of an investigation. Designate a team of individuals, including in-house counsel and compliance officers, tasked to respond to “the government’s knock” on your door. Team should include outside counsel and perhaps even a public relations person. Designate a representative for each site and make sure they are trained how to respond to all types of inspections and investigations. Maintain a list of qualified defense counsel whom you can call in the event of a civil or criminal investigation.