Responding to Government Investigations

Updated September 2004

Provided by the Association of Corporate Counsel
1025 Connecticut Avenue, Suite 200
Washington, D.C. 20036
Tel 202.293.4103
Fax 202.293.4107
www.acca.com

The following materials are intended to provide in-house counsel with information addressing issues related to Responding to Government Investigations. This information should not be construed as legal advice or legal opinion on specific facts, or representative of the views of ACC or any of its lawyers, unless so stated. This is not intended as a definitive statement on the subject but a tool, providing practical information for the reader. We hope that you find this material useful. Thank you for contacting the Association of Corporate Counsel.

The information contained in this InfoPAK^SM developed by the law firm of
Lindquist & Vennum, P.L.L.P.
at the direction of the Association of Corporate Counsel.

Authors:
William Michael, Jr. Chair, White Collar and Regulatory Defense, Lindquist & Vennum, P.L.L.P., Minneapolis, MN; &
Mark D. Larsen, White Collar and Regulatory Defense, Lindquist & Vennum, P.L.L.P., Minneapolis, MN.

Table Of Contents

1. Introduction


2. Types of Government Investigations
   1. Criminal
   2. Civil
   3. Regulatory
   4. Parallel


3. Relevant Legal Concepts and Governmental Policies
   1. Elements of Corporate Criminal Liability
      1. Practical Application of Corporate Liability
      2. Collective Knowledge
      3. Responsible Corporate Officer Doctrine
   2. Control Person Liability
   3. Relevant Department of Justice Policies
      1. Thompson Memorandum
      2. Ashcroft Directive
      3. Practical Effects of these Policies on Corporations
   4. United States Sentencing Guidelines
   5. Relevant Securities and Exchanges Commission Policies
   1. Seaboard Doctrine


4. Investigative Methods
   1. Covert
      1. Electronic Surveillance (Wiretap)
      2. Consensual Audio or Video Surveillance
      3. Undercover Agents and Cooperating Witnesses
      4. Trash Searches
   2. Overt
      1. Search Warrants
         1. General Concepts
         2. General Precautions
         3. Execution of the Search Warrant
         4. Post Search Warrant
         5. Search and Seizure of Computers
            1. Constitutional Considerations
            2. Statutory Considerations
            3. Practical Considerations
      2. Subpoenas
         1. Grand Jury
            1. Subpoenas Duces Tecum
            2. Subpoena ad Testificandum
            3. Practical Considerations
         2. Administrative or Regulatory
            1. Inspector General
            2. Authorized Investigative Demands
            3. Securities and Exchange Commission
      3. Interviews
      4. Foreign Evidence Collection Methods
         1. Letters Rogatory
         2. Mutual Legal Assistance Treaties


5. The Duties and Responsibilities of Corporate Management
   1. Allegations of Misconduct
   2. Duties of Care, Obedience and Loyalty
   3. Personal Liability of Directors and Officers
      1. Civil Liability
   4. Business Judgment Rule
      1. Application of the Business Judgment Rule
      2. Insulating Officers and Directors Under the Business Judgment Rule


6. Responding to the Investigation
   1. Determining the Basis of the Investigation
   2. Determining Requirements and Responsibilities
      1. Indemnification
   3. Determining the Team to Respond
      1. Attorneys
      2. Experienced Investigators
      3. Forensic Accountants
      4. Electronic Evidence Collection Expert
   4. Practical Considerations


7. Corporation Privileges
   1. Attorney-Client Privilege
      1. Corporate Counsel and Corporate Employees
      2. Corporate Counsel and Former Employees
      3. Corporate Counsel and Consultants
   2. Work Product Doctrine
   3. Self Evaluative Privilege
   4. Joint Defense Agreement Privilege
   5. Disclosure
      1. Deliberate Disclosure
      1. Limited Waiver
      2. Inadvertent Disclosure
      3. Mandatory Disclosure
      4. Crime-Fraud Exception to Privileges


8. Additional Resources


9. Relevant Material
   1. Sample Joint Defense Agreement
   2. Thompson Memorandum


10. About the Firm