Responding to Government Investigations
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.
_______ 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.
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.