Michael Kendall McDermott, Will & Emery Michael Kendall McDermott, Will & Emery HCCA April 22, 2002 Advanced Investigations, Privileges and Disclosures Advanced Investigations, Privileges and Disclosures Doug Lankler Pfizer Corp. Doug Lankler Pfizer Corp. McDermott, Will & Emery
37
Embed
Advanced Investigations, Privileges and Disclosures
This document is posted to help you gain knowledge. Please leave a comment to let me know what you think about it! Share it to your friends and learn new things together.
Transcript
Michael KendallMcDermott, Will & EmeryMichael KendallMcDermott, Will & Emery
HCCAApril 22, 2002
Advanced Investigations, Privileges and Disclosures
Advanced Investigations, Privileges and Disclosures
Doug LanklerPfizer Corp.Doug LanklerPfizer Corp.
McDermott, Will & Emery
What Is an Internal Investigation?What Is an Internal Investigation?
2. Meet Requirements of Privilege:Confidential CommunicationFor Legal AdviceBetween Client and Attorney.
3. If Provider Shares Privileged Information With Government, Civil Litigants Will Claim General Waiver
1. Retain Consultant Through Attorney.
2. Meet Requirements of Privilege:Confidential CommunicationFor Legal AdviceBetween Client and Attorney.
3. If Provider Shares Privileged Information With Government, Civil Litigants Will Claim General Waiver
McDermott, Will & Emery
Employee Interviews and PrivilegeEmployee Interviews and Privilege
• Interview ASAP
• Affidavits
• Corporate Miranda:
• You represent their employer and are not their personal attorney
• Employer can waive privilege
• Interview ASAP
• Affidavits
• Corporate Miranda:
• You represent their employer and are not their personal attorney
• Employer can waive privilege
McDermott, Will & Emery
Provide Counsel to EmployeesProvide Counsel to Employees
• Governed by indemnification agreement, corporate by-laws, state law
• Recommend experienced defense counsel
• Provide counsel for present and former employees
• Governed by indemnification agreement, corporate by-laws, state law
• Recommend experienced defense counsel
• Provide counsel for present and former employees
McDermott, Will & Emery
Exit InterviewsExit Interviews
• Affidavits
• Can you ask for assignment of qui tam award at hiring or departure?
• Affidavits
• Can you ask for assignment of qui tam award at hiring or departure?
McDermott, Will & Emery
“Should I Talk to the Government?”“Should I Talk to the Government?”
• “I’m not your lawyer.”
• Get personal counsel
• Never answer, “No”
• “I’m not your lawyer.”
• Get personal counsel
• Never answer, “No”
McDermott, Will & Emery
Contacts with Represented PartiesContacts with Represented Parties
• State ethical rules frequently prohibit a lawyer from interviewing a person the lawyer knows to be represented by another lawyer without the permission of the person’s lawyer
• State ethical rules frequently prohibit a lawyer from interviewing a person the lawyer knows to be represented by another lawyer without the permission of the person’s lawyer
McDermott, Will & Emery
Contacts with Represented Parties (2)Contacts with Represented Parties (2)
• Do not circumvent rule with proxies.
• When learning of government investigation, inform government IMMEDIATELY that you represent provider, and its former and present employees.
• Telephone immediately and follow-up with letter.
• Do not circumvent rule with proxies.
• When learning of government investigation, inform government IMMEDIATELY that you represent provider, and its former and present employees.
• Telephone immediately and follow-up with letter.
McDermott, Will & Emery
Control DocumentsControl Documents
• Preserve
• Review
• Produce
• Don’t Play Games
• Preserve
• Review
• Produce
• Don’t Play Games
McDermott, Will & Emery
Document PreservationDocument Preservation
• Review pre-existing retention policy
• Stop destruction of all documents, tangible evidence, electronic data
• Send written memo
• Review pre-existing retention policy
• Stop destruction of all documents, tangible evidence, electronic data
• Send written memo
McDermott, Will & Emery
ENRONENRON
McDermott, Will & Emery
Altering/Updating RecordsAltering/Updating Records
• Ask why?
• Prevent any deceptive impact
• Correctly record date of supplemental notes
• Use different color ink
• Ask why?
• Prevent any deceptive impact
• Correctly record date of supplemental notes
• Use different color ink
McDermott, Will & Emery
Compliance PornographyCompliance Pornography
McDermott, Will & Emery
Reviewing DocumentsReviewing Documents
• Documents drive government and internal investigations
• Bates number
• Protect your work product/Hubble
• Documents drive government and internal investigations
• Bates number
• Protect your work product/Hubble
McDermott, Will & Emery
Organizational TipsOrganizational Tips
• Factual chronology
• Witness folders
• Factual chronology
• Witness folders
McDermott, Will & Emery
Strategic ConcernsStrategic Concerns
Should you cooperate with the government?
• Government’s discretion– Criminal v. civil v. administrative.
– Range of civil penalties
– Exclusion
• Aggressive Unethical
• Ethical Ineffective
Should you cooperate with the government?
• Government’s discretion– Criminal v. civil v. administrative.
– Range of civil penalties
– Exclusion
• Aggressive Unethical
• Ethical Ineffective
=
=
McDermott, Will & Emery
Prepare for TrialPrepare for Trial
• Even if you will settle
• Even if the government will never know about the matter
• Even if you will settle
• Even if the government will never know about the matter
McDermott, Will & Emery
How Will This Evidence/Issue Fit Into Your Closing Argument
How Will This Evidence/Issue Fit Into Your Closing Argument
• Analyze facts and law to develop a “theory of the case”, a consistent theme that explains the situation.
• Offer a more reasonable explanation than the government’s theory.
• Analyze facts and law to develop a “theory of the case”, a consistent theme that explains the situation.
• Offer a more reasonable explanation than the government’s theory.
McDermott, Will & Emery
How Will You Use This Evidence at TrialHow Will You Use This Evidence at Trial
• Corroborate your witnesses
• Impeach hostile witnesses
• Corroborate your witnesses
• Impeach hostile witnesses
McDermott, Will & Emery
Managing the ProblemManaging the Problem
• Establish reporting protocol
• Report to CEO/Board on serious matters
• Senior management must be involved
• Oral v. written report
• Establish reporting protocol
• Report to CEO/Board on serious matters
• Senior management must be involved
• Oral v. written report ����������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������������