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Students of American political history generally agree now — some 30 years later — that the Nixon presidency didn’t have to end with Watergate. Yes, it was a scandal. Yes, it was embarrassing. Yes, it was wrong. But it didn’t have to be fatal. It became so not because of the initial act — read “crime” — perpetrated by a band of bumbling burglars but because of the manner in which the Nixon administration reacted. The damning evidence on the tapes had less to do with a break-in at the offices of the Democratic National Committee and more to do with the cover-up. The 18-minute gap, “accidentally” created by Nixon secretary Rosemary Woods, spoke volumes. Much the same can be said of the way corporations react to today’s white-collar crime investigations. File your basic civil action against a business and the recipients most likely will shuffle the paperwork to the general counsel’s office, be on the golf course by late afternoon and then sleep well that night. But when the government — in the form of the state attorney general, U.S. Attorney or the Securities and Exchange Commission — shows up, those same people go into full-scale panic, often taking on a bunker mentality that would no doubt make many a White House proud. It’s at this moment that companies generally begin doing things that get them into real trouble: shredding documents, erasing e-mails, firing whistleblowers. In doing so, they often make a good situation bad or a bad situation worse. The first piece of advice then for any corporation staring down the barrel of a white-collar criminal investigation or indictment is to make certain to preserve the evidence in its original form. Save the memos and the e-mails, preserve the hard drives and turn off the shredder. Don’t listen to anyone who wants to get rid of something he perceives as damaging. Destroying materials almost always will lead to a much bigger problem. Preserving the evidence not only helps avoid any potential charges of obstruction, but it also may help your cause on the other side of the equation. Somewhere in the boxes of files or buried in the code of zeroes and ones on a hard drive may be the information that exonerates the company. If you destroy that evidence, you lose forever the ability to utilize it in your defense, and you create the impression you had something to hide. Bring together any group of attorneys and one or more of them will tell you about Company A that called after the government showed up and after the company had flushed key evidence down the drain. They’ll also tell you about other cases in which preserving data helped them prevail in court or with regulators. Let’s not forget that preservation — in the corporate sense — is also the law, one that was reinforced with the passage of the much talked about Sarbanes-Oxley Corporate Fraud and Accountability Act of 2002. The media made great hay out of the act’s requirement that management sign off on company financials. What didn’t get much coverage is �802, which requires corporations and their general counsel to preserve financial data — including e-mails and memos in electronic form — even if the government never comes knocking. EXPERIENCE COUNTS The next thing to do is assemble the legal team. Start by getting some outside legal help. Get a firm with experience in handling such white-collar matters, one with attorneys who’ve faced the government before. This is not a commercial, nor is it some sort of indictment of the abilities of general counsel. It’s merely a statement of fact. When this much is at stake, you want people with the right experience in a variety of areas. Keep in mind that companies are pieces of paper. They don’t go to prison — the people who work for them do. So make certain the legal team you’re creating includes criminal defense counsel who can represent those who might find themselves the targets of an investigation. If those same people are subjects of civil litigation, they’ll need their own personal counsel to represent them in these matters, too. Now that you’ve got the necessary documents, and a bunch of attorneys sitting around the table, dig in. Learn the case. Learn it better than the government. Read everything. Talk to everyone. Pull more files. Go back and interview people again. Eat, sleep and breathe the case. Learn it, know it, live it. The objective in this regard is to arm the legal team, and the company, with enough information to put the government on the defensive. Say it’s a qui tam case involving health care fraud. Get a meeting with the government and show them you know the case better than the whistleblower. Remember, prosecutors want black-and-white cases built on direct evidence, not circumstantial. If you can show a different, but credible, interpretation of the facts and evidence, you’ll help the company’s cause. Use the people who are potential targets to your advantage. The nature of white-collar work means you’re defending a reputable entity, a legitimate business run by respectable people. It’s much harder to defend the accused drug dealer who has no job and a $1 million speedboat. It’s also a good idea to team your legal strategy with a public relations one, especially if the company involved is publicly traded; the mere hint of an investigation by law enforcement or the SEC is enough to send the company’s stock into free-fall. You need someone who’s talking to the reporters writing the page one coverage of the investigation and someone else buying full-page ads inside that remind people the corporation is still doing business and thriving. In the end, it’s an approach that’s quite anti-Nixonian. But it just might help your client survive longer than Nixon did. Matthew Yarbrough is a principal in the Dallas office of Fish & Richardson, a national intellectual property, complex litigation and white-collar litigation firm. He also is a former Assistant U.S. Attorney.

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