PURPOSE
Government investigators may arrive unannounced at _______ or the homes of
present or former employees and seek interviews and documentation. The
purpose of this policy is to establish a mechanism for the orderly response to
government investigations to enable _______ to protect its interests as well as
appropriately cooperate with the investigation.
POLICY
_______ will cooperate with any appropriately authorized government
investigation or audit; however, _______ will assert all protections afforded it
by law in any such investigation or audit.
PROCEDURE
Request for Interview
1. When government investigators request an interview, there is no obligation
to consent to an interview although anyone may volunteer to do so. One may
require the interview be conducted during normal business hours, at _______
or another location.
2. The staff member should always be polite and should obtain the following
information:
a. The name, agency affiliation, business telephone number and address
of all investigators
b. The reason for the visit.
3. When the investigator arrives, ask if there is a subpoena or warrant to be
served and request a copy of the subpoena or warrant.
4. The interview may be stopped at any time, with a request that the
investigator return when counsel can be present. _______ will be represented
by its corporate counsel; employees have the right to their own individual legal
counsel. Local counsel should be present for interviews whenever possible.
5. If an employee chooses not to respond to the investigator's questions, the
investigator has the authority to subpoena the employee to appear before a
grand jury.
6. Any staff member contacted by an investigator should immediately notify his
or her supervisor. Provide this individual with as much information and
documentation about the investigation that is known. Ultimately the request
should be reported to the Chief Financial Officer and the Corporate Compliance
Officer.
The Search
1. Request an investigator on _______ premises to wait until either the
Corporate Compliance Officer, counsel, the Administrator on-call, or the Chief
Financial Officer arrives (each referred to as "the employee in charge").
2. ______ employees must not alter, remove, or destroy permanent
documents or records of _______. All records are subject to state or nationally
recognized retention guidelines and may be disposed of only in accordance
with these guidelines. Once there has been notice of an investigation, the
destruction portion of any policy on record retention is suspended.
3. If the investigators present a search warrant or warrant, the investigators
have the authority to enter private premises, search for evidence of criminal
activity, and seize those documents listed in the warrant. No staff member has
to speak to the investigators, but must provide the documents requested in the
warrant.
4. Request copies of the warrant and the affidavit providing reasons for the
issuance of the warrant.
5. All staff members should request an opportunity to consult with _______'s
counsel before the search commences. Provide counsel with a copy of the
warrant immediately. If counsel can be reached by phone, put counsel directly
in touch with the lead investigator.
6. Cooperate with the investigators, but do not consent to the search.
a. The employee in charge should instruct the lead investigator that:
i. _______ objects to the search;
ii. The search is unjustified because _______ is willing to voluntarily
cooperate with the government; and
iii. The search will violate the rights of _______ and its employees.
b. Under no circumstances should staff obstruct or interfere with the
search. Although they should cooperate, any staff member should clearly
state that this does not constitute consent to the search.
c. Whenever possible, keep track of all documents and what information
the documents contain given to the investigators.
7. If local counsel is not available, the employee in charge should contact the
prosecutor immediately and request that the search be stopped. One can
negotiate alternatives to the search and seizure, including provisions to ensure
that all existing evidence will be preserved undisturbed. If the prosecutor
refuses to stop the search, request agreement to delay the search to enable
_______ to obtain a hearing on the warrant.
8. The employee in charge should attempt to negotiate an acceptable
methodology with the investigators to minimize disruptions and keep track of
the process. Considerations include the sequence of the search; whether
investigators are willing to accept copies in place of originals; and if so, who
will make the copies and how; whether _______ will be permitted to make its
own set of copies; and arrangements for access to records seized.
9. The employee in charge should point out limitations on the premises to be
searched and on the property to be seized.
a. Avoid expansion beyond the proper scope of the search from confusion
or overreaching.
b. Never consent to an expansion of the search.
c. Disputes regarding the scope must be brought to the attention of the
prosecutor or the court to be settled. _______ staff should not prevent
the investigators from searching areas they claim to have the right to
search.
d. Investigators generally have the right to seize evidence of crimes that
is in their "plain view" during a search regardless of whether such
evidence is described in the warrant.
10. The employee in charge should take appropriate steps to protect other
_______ staff members.
a. ______ should send all, but essential personnel home, or temporarily
reassign them to other areas when a warrant is served.
b. Selected employees should remain along with the employee in charge
and/or _______ counsel to monitor the search.
c. Investigators should never be left alone on _______'s premises, and
no employee should be left alone with the investigators.
11. Object to any search of privileged documents.
a. If there is any possibility that the search will compromise privileged
information, ______ should object on that basis, and raise the issue with
the court if necessary.
b. Negotiate a methodology to protect the confidentiality of any
privileged information pending a resolution of these objections. For
example, segregate the privileged documents from other files and
investigators will not read the documents until the court had made a
decision or the investigators will seize the documents, but place them
unread in sealed envelopes until the matter is resolved.
12. The employee is charge should keep a record regarding the search.
a. Ask each investigator for proper identification, including their business
cards.
b. List the names and positions of all the investigators with the date and
time. Verify the list with the lead agent and request he or she sign it.
c. Monitor and record the manner in which the search is conducted. Note
in detail the precise areas and files searched, the time periods when
each of them was searched, the manner in which the search was
conducted, the agents who participated, and which files were seized.
d. Several individuals will be probably be needed to monitor the different
areas being searched simultaneously.
e. If the monitor is ordered to leave, contact the lead investigator. A
person should only be ordered to move if they are in the way, not to
avoid being observed. Never provoke a confrontation with an agent.
13. If possible, do not release a document to the investigators unless it has
been reviewed by counsel. This is not possible under a search warrant.
14. Keep all privileged and confidential documents separate and labeled
accordingly. If seized, the documents should be protected from disclosure if
labeled properly.
15. If possible, the employee in charge should make a record and a copy of all
records seized.
a. If this is not possible, before the agents leave _______'s premises,
request an inventory of the documents seized.
b. Request the lead agent to note the date and time the search was
completed as well as sign the inventory with the agent's full title,
address, and telephone number.
c. When documents are seized, the investigators are required to give the
occupant a copy of the warrant.
d. Copies of the seized documents should be requested as well,
especially medical records, as this is the most efficient way to inventory
the documents seized.
e. Create a parallel inventory of the documents seized.
f. Download copies of files from hard drives of computers, and copy
diskettes, especially if the material is essential to the ongoing operations
of _______.
16. If possible, videotape the search.
a. A videotape may provide evidence of undue disruption or misconduct
on the part of the investigators.
b. If the investigators claim the taping interferes with the search, the
employee in charge should make a record of the refusal. Do not persist if
the agents have warned that they regard the taping as an interference.
Courtesy of von Briesen, Purtell & Roper, s.c., Milwaukee, Wisconsin.
