Expecting The Unexpected: How To Prepare For, Respond To, And Survive A Search Warrant

It is a company's worst nightmare. Out of the blue, government agents appear at the reception desk armed with a search warrant, demanding access to company emails, files, and other proprietary data. Employees soon notice and become increasingly anxious and agitated as agents comb through their offices and begin to interview some of them. Neighboring establishments and the media then catch wind of what's happening. Camera crews arrive in time to capture grim-faced agents hauling box after box of corporate records out of the business and into awaiting evidence vans. The "raid" is the lead story on the evening news and featured on the front page of the next morning's paper.

For some companies, this nightmare scenario is an all-too-painful reality. Indeed, although search warrants are among the most extreme and intrusive government investigative tools, they are used with regularity to gather evidence from a wide variety of business organizations.1

A company's response in the minutes and hours after the government executes a search warrant can impact the outcome of the entire government investigation. A well-executed response can also help establish the foundation for an internal corporate investigation into the alleged conduct on which the search was predicated. Because the stakes are high when presented with a search warrant, every company should have a well-developed plan in place to react quickly in order to appropriately protect the company. Advance planning and employee training can greatly assist a company should it later become the target of a government inquiry and/or the subject of a government search warrant.

Such planning and training can likewise pay dividends for the internal investigation that will almost inevitably follow an unexpected government raid on a company. Robust corporate compliance programs often uncover suspicious conduct even in the absence of a government investigation. When an internal investigation is commenced apart from any government inquiry, the company typically can set the scope and pace of the investigation at its discretion. In contrast, where an internal investigation is triggered by a government search, it is important for the company itself to be able to gather information from the search for use in fashioning the ensuing internal investigation.

This White Paper provides a breakdown of what a company needs to know and do in the immediate wake of the execution of a search warrant, and the attached 10-step checklist offers a quick reference guide for in-house counsel when confronted with a search warrant.2

PREPARING FOR A SEARCH WARRANT

The in-house legal team at most companies will have no experience responding to the execution of a search warrant and, in all likelihood, will not know what the company ought to do when subjected to a government search. The fog of the moment while a search is proceeding is difficult enough for veterans of search warrants to deal with; it can be utterly paralyzing for first-timers.

To ensure that the best practices outlined in this publication are known to, and followed by, the right personnel in your company, appropriate effort should be expended in preparing for the possibility, however seemingly remote, that the company will be searched by the government at some point in the future. In particular, a written search warrant response protocol consistent with the guidance presented here would be advisable. Moreover, communication between relevant corporate personnel and outside counsel long before any government agents arrive with a search warrant can allow the company to prepare a response that is tailored to its particular needs.

RESPONDING TO A GOVERNMENT SEARCH WARRANT

Although the government may investigate a company for months or even years beforehand, a search warrant is often the company's first clue that it may be the target of an ongoing inquiry. The government is required to obtain the approval of a judicial officer (e.g., a magistrate judge) to conduct a warrant-based, nonconsensual search. In the search warrant affidavit, the government must explain its theory of criminal conduct, and then link that theory to the items sought to be seized. The premises to be searched, the items to be seized, and the justification for the search must be set forth with reasonable particularity in the warrant and supporting materials. In other words, a search warrant should not be—and usually is not—a broad "fishing expedition" but instead an exercise targeted at specified places and things, and typically informed by substantial pre-warrant fact gathering.

Search warrants, then, are normally key events in government investigations, and companies need to prepare for, and respond to, the execution of warrants accordingly. In particular, it is critical for the company to manage the logistics of the search, and manage its employees.

Managing the Logistics of the Search

Immediately Contact Counsel and Key Corporate Personnel. As indicated in the attached checklist, counsel (along with key corporate personnel) should be contacted immediately once it is determined that law enforcement officers intend to execute, or are in the process of executing, a search warrant on company property.

Control the Information Flow. The execution of a search warrant generally involves many agents, often from multiple agencies, descending upon the company in a manner that is unavoidably disruptive to business operations. Maintaining calm within the organization and effectively managing the flow of information to the agents should be two paramount goals. To avoid confusion, the company should designate one person to deal with the government agents and consider sending home all employees not essential to the search or ongoing business operations.3

Review the Warrant. Government agents executing a search warrant are generally required to leave a copy of the warrant at the premises searched. At the first opportunity, the corporate representative should request a copy of the warrant and supporting affidavit. The supporting affidavit, which sets forth the factual foundation for the...