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In this climate of ever-increasing white-collar crime investigations and televised perp walks of corporate execs, it is important for in-house counsel to familiarize themselves with the two most effective tools the government has for conducting criminal investigations: grand jury subpoenas and search warrants. A grand jury subpoena is different from the type of subpoena issued in a civil suit that most in-house attorneys are accustomed to. If a matter is before a grand jury, then it is highly likely that some law enforcement agency already has completed a preliminary criminal investigation. As a rule, once an in-house counsel receives a grand jury subpoena or any other form of communication that implies a criminal investigation is afoot, that person should contact a criminal defense attorney with experience in white-collar crime investigation and should do so before responding to the request for information. Having said that, there still are important things the in-house attorney can do or should know about. The in-house attorney should know that an individual employee who may be the subject of an investigation may receive a “target letter” from the prosecuting agency inviting that individual either to testify before the grand jury or to have his or her attorney contact the prosecutor to discuss the case. An employee subpoenaed to testify before a grand jury may invoke the Fifth Amendment right not to incriminate oneself during the proceeding, but the employee still must show up unless the judge grants a motion to quash the subpoena. The same goes for a grand jury subpoena for documents. A motion to quash is the remedy for a subpoena that is overly broad, one that reaches for information beyond the scope or time of the investigation. Silence is never an appropriate response. The right against self-incrimination may come into play when responding to a grand jury subpoena for documents, but there is a hitch. First, the “collective entity rule” says that a corporation, as an entity that exists solely at the discretion of the state, has no Fifth Amendment privilege in the contents of its records. Through the years, this rule has been applied to such collective entities as labor unions, political parties and partnerships. However, while the contents of documents may not be privileged, the act of producing the documents may be. A subpoena compels the person who has the document to take an action that may speak volumes. Producing the documents says they do exist, they are in that person’s control and they are authentic. The record custodian may invoke a Fifth Amendment privilege not to produce the documents because of the incriminating effect. If the documents exist and no privilege applies, locate and isolate the requested documents. An innocent party almost certainly can invite unwanted further investigation by altering, amending or destroying records after receipt of a document request. Set up a clearinghouse with an independent records custodian to insure the authenticity and relevancy of the documents. The general counsel also should review any documents before handing them over to the government. SEARCH WARRANTS Because they give the government agency several advantages over the use of subpoenas, search warrants have become more popular. While it can take weeks of delay to copy, label and litigate over documents requested in a broadly worded grand jury subpoena, documents can be collected the day a search warrant is executed. Documents seized by warrant may become the subject of litigation, but while the parties fight over whether the government had the right to take the documents, government agents are furiously reviewing them, looking for incriminating evidence. Another advantage of executing search warrants is that it puts government agents in proximity to the corporation’s employees. It is typical for some agents to interview employees while other agents gather and log evidence. Such impromptu interviews often provide the government with some of its best evidence in the form of admissions, leads, or other statements the government interprets as false or misleading. Here are a few fundamental tips for the office supervisor confronted with agents brandishing a search warrant: � Do not interfere with the raid. Disputes over what the agents are seeking, what they took and whether they exceeded their authority can be dealt with later. There is nothing to be gained from provoking a fight with law enforcement agents, and agents are authorized to arrest individuals who obstruct the investigation. � Do not prohibit employees from speaking to law enforcement agents. This could be construed as an attempt to obstruct the investigation and also may be used against the person giving such advice as evidence that the person had something to hide. � Do tell employees that they can tell an agent, “I would like to discuss that with my attorney.” Agents will try every trick in the book to get employees to give interviews right then and there. Clients may be tempted to think that if they could just sit down with the agents, they could explain that nothing untoward is going on. However, when a confession or corroboration of wrongdoing is not forthcoming, the agent may begin to question the honesty of the interviewee. Innocent individuals may turn into suspects largely because of perceived “lies” made to interviewing agents during the course of a raid. � Obtain a copy of the search warrant and supporting affidavit from the agents performing the search. It is likely that the agents will refuse to provide a copy of the affidavit (they don’t have to), but it doesn’t hurt to ask. The affidavit often will contain information that can help you determine the nature and focus of the investigation. As with grand jury subpoenas, it is essential to contact an experienced criminal defense lawyer immediately to serve as an intermediary with the government. An even better defense, however, is to keep employees and executives on the straight and narrow. Hopefully an in-house attorney never will have to know what a search warrant or a grand jury subpoena even looks like. Thomas W. Mills Jr. is a founding partner of Mills & Williams in Dallas. His practice includes criminal defense and other complex litigation.

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