No One Wants A Response Plan For A Search Warrant
General counsel to CEO:
“Hey, I think we should have a plan in place just in case the FBI ever gets a search warrant for our office.”
“Why the hell would we do that? We aren’t criminals.”
“I’ll just leave your office now.” [backing up slowly]
This is not a conversation that any general counsel wants to have with leadership. But every general counsel should have the conversation. And every company should have a search warrant plan—no matter how basic—in place.
Search warrants remain thankfully rare in white-collar criminal investigations, but the Department of Justice has been using them in greater numbers than ever before. The FBI has executed warrants at pharmaceutical companies, financial services companies and manufacturing companies.
The execution of a search warrant is a scary process for any company. But the results will be worse down the road if you don’t have a plan in place for a few reasons:
First, your plan will make clear to employees that they should not talk to agents without a company lawyer present. The last thing you want is for employees talking to the government before the company knows the focus of the investigation, has retained counsel and has a handle on its approach to the investigation. Your employees can (intentionally or not) sink you.
Second, your plan will denote the point of contact for the response to the warrant, preferably a lawyer. This identification narrows the number of people who talk to the agents that day. The contact will also be in charge of key parts of the response, including obtaining a copy of the warrant and its accompanying affidavit, asking for the names of agents there, gathering the business cards of the agent or agents running the operation and warning the lead agent if they are seizing privileged information.
Third, your plan will say that, to the extent possible, employees should be sent home. This reduces the stress on employees and also makes it harder for agents to question them. (Are you seeing a trend here?)
Fourth, your plan will explain to employees what they can and cannot do during the search. They can watch and record what the agents do during the search. But they cannot stop the agents from taking anything (even if arguably outside the warrant’s scope) or interfere with the search in any way. Perhaps most important, the plan will make crystal clear that no one should delete, destroy or shred anything because of the search.
The last thing the company needs is an obstruction of justice charge in addition to whatever else is happening.
Fifth, your plan will identify outside counsel to contact immediately. Outside counsel will contact the prosecutor, find out the scope of the investigation and whether the company is a subject, target or witness. She will help handle any privilege issues and defend the company in the investigation going forward.
Once you have a plan in place, you will hope you never have to use it.