The Press And Feds Are at Your Door: Are You Ready?

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The Press And Feds The Press And Feds Are at Your Door:Are at Your Door:Are You Ready?Are You Ready?

The Press And Feds The Press And Feds Are at Your Door:Are at Your Door:Are You Ready?Are You Ready?

Tom Lindley2009

Tom Lindley

Start with humans:Is it Press, Agency, or Officer?Start with humans:Is it Press, Agency, or Officer?

Different rules for each Discuss Press, then Agents and Officers

Tom Lindley

If it is the Press:If it is the Press: Do you or your business care about public

image? If not, then you can say: “Go away.” But if you do, you must talk with the reporter.

Always balance before engaging: is risk worth benefit? (Can hurt future or help future)

Five rules of engagement: Develop a Simple Primary Theme. Prepare for Difficult Questions. Be Positive. Write Down and Memorize Important Responses. Bridge to Your Positive Messages and Themes.

Tom Lindley

Develop a Simple Primary ThemeDevelop a Simple Primary Theme

Allows you to influence the press conference or interview and ensure that you get your message out.

Helps avoid becoming the victim of the interviewer's agenda.

Less likely to be distracted and lose concentration.

Tom Lindley

Prepare for Difficult Questions; Be PositivePrepare for Difficult Questions; Be Positive

Anticipate the worst, and the most difficult, questions. Minimize the possibility of ambush.

Negative statements do nothing for your image or the image of your company.

Tom Lindley

Bridge to Your Positive Messages and ThemesBridge to Your Positive Messages and Themes Certain words and phrases can be used to

transfer from the questioner's agenda to your positive messages and themes.

Examples of bridging words and phrases include: (a) "Yes, but . . ."; (b) "No, but let me explain . . ."; (c) "I don't know about that, but here's

what I do know"; and (d) "What's more important now,

however, is . . ."

Tom Lindley

Responding "No Comment" Is a No-No.Responding "No Comment" Is a No-No. “No comment” is portrayed very

negatively. Better alternatives:

(a) "I cannot comment on that now, but I will have plenty to say later";

(b) "I'm here today to talk about the spill and our successful cleanup, not other topics or unfounded allegations"; or

(c) "We will respond to that question at the appropriate time."

Tom Lindley

Dealing With Stakeouts.Dealing With Stakeouts.

Remain positive Ignore their continuous questions. If you smile, wave, wish them well, and

ignore their taunting questions, it is highly unlikely that you will ever see that footage on television.

Tom Lindley

Off-the-Record Comments-there are none.Off-the-Record Comments-there are none.

Reporters use this tactic. Don't fall for it. The information will be attributed to "an unnamed source close to the investigation."

Nothing is ever really off the record.

Tom Lindley

If It Is An Agency Or An OfficerIf It Is An Agency Or An Officer Rules of Engagement Change! Often no choice about responding. You might want to cooperate:

Agencies will be with you forever. Agencies might be neutral before you start the

interaction. You might want to do minimum required

by law: People with warrants are not neutral.

Tom Lindley

Four methods of accessFour methods of access Consent

Agents prefer: consenting may be advisable Note: Emergencies or “Plain View” access

Nonconsensual warrantless inspection Statute must authorize and define search’s

scope “Highly regulated industry” or “Licensing”

exception Might have consented in permit

In both, do ask “why us?”

Tom Lindley

Four methods of accessFour methods of access Administrative inspection warrant

Normally used when access is denied for routine compliance check or when agency receives "written substantiated complaint"

Issued for less than probable cause to believe crime committed

Requires a magistrate's (judge’s) signature Restricted to inspecting or photographing only that

listed in the inspection warrant May be used only to gather evidence for civil

enforcement

Tom Lindley

Four methods of accessFour methods of access

Criminal search warrant Requires “probable cause” to believe that you or your

business has committed a crime Magistrate's (judge’s) signature required

This is not your neutral agency! Agency is at your door because it believes there has

been or is on-going criminal activity Agency is seeking proof to convict a "wrongdoer" Agency is not your friend here, nor is it amenable to

frequently used civil procedures

Tom Lindley

Responding during criminal investigationsResponding during criminal investigations

Time is very limited Assemble your defense team immediately Immediately communicate to all employees both

nature of investigation, importance of not interfering with warrants and importance of avoiding false or

misleading statements If possible, send home non-essential personnel

Tom Lindley

PRINCIPLES OF CORPORATE PRINCIPLES OF CORPORATE CRIMINAL LIABILITYCRIMINAL LIABILITY

A company may be held criminally liable for the illegal acts of a single employee, regardless of the employee’s position within the corporation.

Criminal liability attaches if the employee’s actions were:

– Within the scope of his duties; and

– Intended, at least in part, to benefit the company.

Tom Lindley

CORPORATE CRIMINAL LIABILITYCORPORATE CRIMINAL LIABILITY An act is within the scope of employment if it is

generally related to the employee's duties, even if not approved by management.

Even when an employee acts contrary to company policies and specific directives, a company can still be held criminally liable.

Tom Lindley

CORPORATE CRIMINAL LIABILITYCORPORATE CRIMINAL LIABILITY

• A company may be held criminally liable if any part of the rogue employee’s motivation was to benefit the company, even though the employee was acting primarily to benefit himself.

• A company need not actually receive a benefit from its employee’s illegal conduct to be held criminally liable.

A corporation does not have a 5th Amendment privilege against self-incrimination

Tom Lindley

Responding during criminal investigations

Responding during criminal investigations

When a warrant has been issued, federal and state laws authorize force to effect it

Interfering with an agent carrying out a warrant can be a serious crime

Statutes provide for jail time (up to several years) for obstruction of agent with warrant

But nothing requires you to do the officers' work

Be professional

Tom Lindley

If you can review the warrant If you can review the warrant Determine its scope: are there any

limits on areas of access? limits on types of documents? limits on types of activities?

If agents exceed limits, do not obstruct but do advise them, with witnesses present, that they have exceeded the warrant's scope

If agents ask for consent to go beyond the warrant, do not give it without the appropriate high-level approval and all due consideration

Do not give any appearance of consent (not even just silence) if you are not consenting

Tom Lindley

While the agents are presentWhile the agents are present

GOAL: same record as agents/officers Accompany each and every agent everywhere and take

detailed notes of which documents are taken from where which samples are taken from where which personnel are talked with

When possible, also take photos/ video of activities Involve high-level personnel familiar with the need not to

obstruct, but also to make detailed, accurate observations

Do not freely convey information

Tom Lindley

If any documents are takenIf any documents are taken

For every document: without interfering, list each document or set of documents and

list where it is taken from Try to reach agreement to retain copies, or even originals, so

that your business can continue For confidential documents:

If attorney-client documents are taken, note that fact and, in the presence of witnesses, state your objection

If confidential business information is taken, tell agent, in presence of witnesses, that the documents are protected and cite authority

Tom Lindley

If physical samples are takenIf physical samples are taken

Note or request agent’s or officer’s methodology Note promptly to agency the need for time-

awareness samples must be tested within certain times

Through counsel, have an outside consultant take splits, or best approximation of a split

Tom Lindley

If employees are asked questionsIf employees are asked questions

Distinguish between management and non-supervisory employees

Rules may differ Management nearly always binds entity and

can refuse to answer without attorney present Under some statutes (e.g., OSHA), non-

supervisory employees can speak to investigators with NO employer representative present

Tom Lindley

If employees are asked questionsIf employees are asked questions

Agents acting under warrant usually have no right to interview employees during search, but they will try and often succeed

Where possible and appropriate, counsel should intercede and advise employees that they are not obliged to speak to or aid the agents Counsel cannot forbid an employee from

talking with agents on his/her own time

Tom Lindley

If employees are asked questionsIf employees are asked questions Arrange discreetly but immediately for each

person to be debriefed by counsel Inform each person that

he or she has Fifth Amendment rights absent a subpoena, he or she may have no obligation

to submit to interviews Inform each person that

he or she has a right to own counsel corporate counsel is not their counsel corporation may/will provide counsel (have policy

ready and address it with each person)

Tom Lindley

One more way for access: the “AMBUSH INTERVIEW”One more way for access: the “AMBUSH INTERVIEW” Example: covert investigation followed by

multiple simultaneous evening visits to executives’ homes

Agents will usually start friendly, in friendly setting, BUT …

No obligation to talk at that point, and Frequently better to talk with attorney and

management first

Tom Lindley

SURVIVAL IS BEST ARRANGED IN ADVANCE: PREPARE!SURVIVAL IS BEST ARRANGED IN ADVANCE: PREPARE!

Be "inspection ready" You cannot "prepare” when officers arrive

Regular environmental and other audit programs Strong company policy on environmental performance

and other compliance, including: prompt reporting of noncompliance events expeditious corrective actions when needed

Decide in advance to whom counsel will be provided Manual and wallet cards with key points and numbers

Tom Lindley

Ongoing prerequisites to survivalOngoing prerequisites to survival Train company personnel

Policy re “drop-ins and ambushes” Bullet list of who to do what/who to call How to answer: honestly but carefully and do not

guess Anticipate press interest

Develop plan Select and announce spokesperson

Prepare safety orientation Anticipate documentation needs Assign corrective action response team

Tom Lindley

Safety orientationSafety orientation

Request/require that your safety rules be followed

Provide safety hats and other routine safety items (including films) as for any visitor

Agency personnel do not have to undergo your particular training

can be done for the initial inspection team can be done each day for new inspectors

Tom Lindley

Develop "ground rules" for agency personnelDevelop "ground rules" for agency personnel Request a schedule of activities Bring requested records/documents to the

inspector if possible/allowed Key staff must accompany inspectors for all field

work and records reviews Key staff will participate in all field inspections Recognize that you may have to ask for a short

"time out" to consult legal counsel Ask for entry, exit and daily exit briefings

Tom Lindley

Assignment of correction action response teamAssignment of correction action response team Preassign responsibility for correcting any

(potential) violations Remedy violations immediately if possible

and inform inspectors as soon as possible Where remedies require long time frames,

begin efforts immediately At day's end, specifically ask what

violations were identified

Tom Lindley

Reduce or Avoid Risks with Internal Compliance Audits!Reduce or Avoid Risks with Internal Compliance Audits!

Where you can avoid such a lawsuit, less costly to do so

Use a regular audit program to review operations and permitting

Do so through attorney/client and state privileges

Tom Lindley

RESPONDING TO A RESPONDING TO A GRAND JURY SUBPOENA GRAND JURY SUBPOENA

Preserve all documents, e-mail and data.

Suspend document retention policy.

Do not destroy anything!

Investigate

Tom Lindley

GRAND JURY SUBPOENASGRAND JURY SUBPOENAS

Obtain assistance from experienced counsel who is familiar with the investigating agency

Determine the purpose of the subpoena.

Determine whether the company or any of its employees are targets of the investigation or just witnesses.

Tom Lindley

GRAND JURY SUBPOENASGRAND JURY SUBPOENAS

It may be appropriate to narrow the scope of the subpoena.

Clarify what documents and information will be responsive to the subpoena.

Find out whether you can produce copies of documents instead of originals.

Tom Lindley

GRAND JURY SUBPOENAS GRAND JURY SUBPOENAS

Meet with senior management, information systems personnel and those employees directly involved with subject(s) described in the subpoena to identify all sources of responsive documents and data.

Assign the task of searching for and delivering to the designated corporate officer the responsive documents.

Tom Lindley

GRAND JURY SUBPOENASGRAND JURY SUBPOENAS

Review all documents to determine whether they contain attorney-client privileged communications or constitute attorney work product.

If subpoenaed documents include trade secrets or confidential business information, request an agreement with the government to avoid unnecessary disclosure.

Tom Lindley

GRAND JURY SUBPOENASGRAND JURY SUBPOENAS

Mark all "sensitive documents to be produced “CONFIDENTIAL May be subject to 18 U.S.C. § 1905."

Number and copy each document before production.

Numbering the documents will prevent confusion as to which documents have been produced.Numbering will facilitate quick reference in communications.

Tom Lindley

GRAND JURY SUBPOENASGRAND JURY SUBPOENAS

Produce all subpoenaed, non-privileged documents.

Failure to comply will heighten the government’s interest and may result in obstruction of justice charges.

Move to quash if subpoena is too broad.

Tom Lindley

QUESTIONS?QUESTIONS? Tom Lindley 503-727-2032 [email protected] www.perkinscoie.com