November 21, 2024

By: Douglas K. Rosenblum

An article from Pietragallo’s Government Enforcement, Compliance, & White Collar Litigation Group’s Publication of

Staying Ahead of the Curve: Practical Guidance for Government Enforcement Matters and Internal Investigations.

The full publication can be found here.

One of our country’s Founding Fathers, Benjamin Franklin, taught us, “By failing to prepare, you are preparing to fail.” It is imperative that everyone, especially those who own a business or otherwise run an organization, prepare for the possibility of being the subject or target of an investigation by law enforcement. To be clear, not only those engaging in unlawful conduct find themselves on the receiving end of a government inquiry. The United States Department of Justice employs more than 115,000 individuals across its various divisions, many of whom are paid for the sole purpose of conducting investigations. States’ Attorneys General and county and city prosecutors across the country each employ up to hundreds or thousands of employees, many of whom do not try cases but rather investigate alleged crimes for potential prosecution. Coupled with incentives for whistleblowers to report wrongdoing, it is entirely possible, and even likely in select industries, that businesses will be the subject of legal process at some point in the company’s lifespan. The most serious – and intimidating – of such legal process is the execution of a search warrant.

1. It is incumbent upon corporate entities and their leadership to prepare all employees on how to calmly and effectively respond to the execution of a search warrant in order to avoid allegations of obstruction, limit admissions and liability, maintain continuity of operations, and preserve all available privileges. The below steps serve as a non-exhaustive checklist of best practices to accomplish the above goals.
2. Immediately notify counsel that a search warrant has been served and is being executed. Counsel are trained professionals who are best suited to interface with government agents. Many attorneys who practice in this space will drop everything at a moment’s notice to monitor the execution of the warrant in person. To that end, keep your attorney’s cell phone number handy at all times.
3. Notify law enforcement that you and the company are represented by counsel. Facilitate telephonic communication between your counsel and the lead government investigator on site as soon as possible. Request a delay of the search until such time as counsel arrives. The government is under no obligation to wait, but there is no harm in asking politely for this courtesy.
4. Obtain a copy of the search warrant from law enforcement on site and send it to your counsel (by email or text message is usually easiest and fastest). Before law enforcement departs the premises, politely request a copy of the “search warrant return” or “inventory.” The government must provide a list of items they took from the site. Provide this document to your counsel, as well.
5. Obtain the name and contact information for the lead government contact on site. Ask for the name and contact information of the prosecutor assigned to the case.
6. Review carefully the search warrant and note (a) who is authorized to conduct the search, as well as (b) the areas of the premises permitted to be searched and (c) the exact items permitted to be seized.
7. Request from the lead government agent on site any and all affidavits filed in support of the search warrant.
8. Request to view the credentials of each government agent on site. Ask for business cards from all government representatives. Note the agency for which each agent works; there will likely be agents from multiple agencies at the execution of a single search warrant.

Assign a single person to monitor the execution of the warrant. This will ideally be an attorney. If an attorney is not immediately available, assign the most knowledgeable supervisor on site. This monitor should (a) accompany the agents throughout the premises so that no agent is ever left unattended; (b) take detailed notes of the progress of the search, including locations searched, items seized, and individuals with whom federal authorities spoke (regardless of duration of the interaction); (c) record by photography or videography as much of the search as possible. Please note, however, that in many jurisdictions it is unlawful to create an audio recording without the consent of all parties involved; (d) confine the search to only those areas of the premises authorized in the warrant and in areas that are able to hold the items to be seized; and (e) segregate all privileged documents and communications and notify the government that neither the entity nor any individual is waiving any privilege.

Assign the fewest number of supervisors and/or employees to remain on site during the search. The business should be closed to the public and all visitors during the search. All employees not necessary for the monitoring of the search should be sent home with instructions that they should speak with as few people as possible about the search. Employees should be advised that they have a right to speak or not speak with the government; the government cannot compel an employee to testify without a subpoena, and employees have the right to counsel. Employees should be told that the government might ask for their consent to search their personal items, including cell phones, on site. Advise employees that they are under no obligation to do so. It is a personal choice and cannot be compelled without a warrant or subpoena. If your company has a policy that permits indemnification, you should instruct employees that the company will pay for their counsel if they decide to retain an attorney.

Above all else, remain calm. Do not interfere with the agents executing the warrant; keep in mind that they are just doing their job. Do not anger, obstruct, or impede the agents conducting the search. Do not destroy or hide anything!

At the time of the execution of a search warrant, it is not uncommon for the government to also serve a subpoena requiring the production of certain documents, physical items, or testimony. It is critical to note the deadline and location when production of those items is required. Items listed on the subpoena need not be produced immediately at the time of service. Provide a copy of the subpoena to your counsel as soon as possible.

Perhaps the most important takeaway is to avoid waiting for the execution of a search warrant to prepare. Speaking with employees about legal process and what to do in the event of a visit by the government should not be taboo. Much like fire drills, employees should be prepared in case of an emergency or unexpected event. Such a conversation does not need to induce fear or foreshadow criminal charges or the downfall of the company. Rather, an informal “lunch and learn” or in-service training on this topic is time well spent. Employees need to understand that even upstanding citizens can find themselves on the receiving end of false allegations leading to a government investigation. Let us all honor Benjamin Franklin and prepare!