There are many ways by which the Government, federal or state, can appear at a company’s doorstep. The most disruptive and unnerving is when government agents show up in the company’s lobby to serve and execute a search warrant. Is your company prepared?
Every company should have clearly defined written policies and procedures included in its employment manual. I’m not suggesting that Human Resources spend half of a day of orientation pontificating on the nuances of the 4th Amendment or Federal Rule of Criminal Procedure 41. Rather, companies simply need to inform employees of their basic rights. Employees should know that they have the right to decline a government agent’s request for an interview and, if they decide to answer questions, that the company will provide them with an attorney at the interview. Also, ease employees concerns by letting them know that there will be a “Crisis Management Team” (CMT) ready to deal with the warrant and monitor the agents. This quick and easy training could end up saving your company’s assets in a time of crisis.
Your company’s CMT should obviously include in-house counsel, but it must also incorporate other key members such as office managers; IT staff (which is crucial); a spokesperson to deal with the press; human resources; security; and your outside counsel. The team should be provided with comprehensive training about their roles and the company’s rights during a search because they will be documenting and, if need be, objecting to the agents’ conduct or seizure. Your receptionist should also be armed with a copy of the policies and procedures, as well as regularly updated contact information for each of the individuals on the CMT. If you are a tenant, make sure that building management agrees with your policies and that building security personnel are on board with your plan of action. Those security guards will likely be the first contact between your company and law enforcement.
Don’t forget – your company should be backing up all data all the time and maintaining those duplicates off-site. This will enable your company to maintain its day-to-day operations notwithstanding the seizure. In addition, make sure to clearly identify all documents that are considered trade secrets or privileged and to save them in separate areas. Generally, the government will not seize privileged documents and it is a crime for the DOJ to release a company’s trade secrets.
Finally, make sure to prepare a notification in advance of a potential search to be sent to all employees in the event of a search. The notification should include an explanation of your company’s warrant compliance protocols and a list of the members on the CMT. The email should also inform employees that they should not interfere with the search and that they are under no obligation to consent to an interview with governmental agents but, if they do, a company lawyer will be provided.
The vast majority of companies are conducting business in a lawful manner so it is hard to imagine the FBI showing up with a search warrant. However, all companies are regulated in some manner and certainly cannot monitor all employee conduct. Search warrants happen. So take a little time to create or update your company’s search warrant protocols and make sure your business is prepared.
We’ll talk about what your company’s response should be when the warrant is actually executed in future FSB articles.
