Page 21 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

requirements in the Yates Memo, however, may have changed the landscape, at least as to JDAs
between employees and companies seeking cooperation credit from DOJ. In the past, the benefit
of a JDA to the company was access to privileged information from counsel for potentially liable
employees that these employees otherwise may have been unwilling to share. The benefit of a JDA
for individual employees was potentially better insight into the internal investigation, the opportunity
to shape the findings of the internal investigation, and the ability to share costs and resources.

However, the Yates Memo’s requirement that companies identify wrongdoers and
detail the misconduct learned in the internal investigation in order to receive cooperation credit and
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Deputy AG Rosenstein’s subsequent revised guidance on the topic have limited the incentives for
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JDAs between the company and individual employees in the context of DOJ investigations. Although
a company may benefit from a JDA because it may facilitate the flow of information from otherwise
unwilling employees, the Yates Memo’s strict cooperation requirements mean that companies
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seeking cooperation credit might want to disclose information about employees, even if the company
learned it through a protected JDA communication. While Deputy AG Rosenstein softened the
Yates Memo’s reporting requirements, it still requires disclosure of details regarding individuals with
substantial involvement or responsibility for the alleged misconduct – something a company likely
does not know at the time when it must decide whether to enter into a JDA with an employee. Thus,
a company is stuck with two somewhat conflicting options. The company could use a traditional JDA
and possibly forego cooperation credit if the individual ends up being substantially involved in the
misconduct and the company is blocked from disclosing details pursuant to the JDA, or a company
could use a more limited JDA with a carve-out for disclosing information to DOJ, which may in turn
reduce the amount of information the investigators are able to obtain and thereby affect the level of
cooperation the company is able to offer the government. DOJ suggests that companies address the
situation by “crafting or participating in joint defense agreements, to the extent they choose to enter
them, that provide such flexibility as they deem appropriate.” If that “flexibility” refers to JDAs
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that permit companies to share certain information learned through the JDA with law enforcement
authorities, then it may signal the end of traditional JDAs between companies and individuals and
limit the company’s access to information.

While there may be no path for meaningful traditional JDAs between companies
and individuals when the company wants to preserve the option of seeking cooperation credit from
DOJ, JDAs may still be beneficial between companies and individuals when DOJ cooperation credit
is not at play. JDAs also may be advisable among individuals, or among the company, Board and
Independent Committee, when those parties intend to exchange privileged information. Finally,
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57 See Yates Memo, supra note 11, (“That is, to be eligible for any credit for cooperation, the company must identify all individuals
involved in or responsible for the misconduct at issue, regardless of their position, status or seniority, and provide to the Department all
facts related to that misconduct.”).
58 Justice Manual, 9-28.700.
59 A company’s response may be to require employees to submit to interviews as a condition of employment, which implicates
constitutional issues. See supra note 49.
60 Justice Manual § 9-28.730.
61 A JDA might be a useful tool for protecting information about an internal investigation shared between counsel for a company
and the government from third party discovery. In the instances that a third party has challenged such a common interest assertion,
the results have been varied. See, e.g., U.S. v. Bergonzi, 216 F.R.D. 487, 496 (N.D. Cal. 2003) (finding that, despite entering into a
confidentiality agreement, no common interest existed between the government and the company disclosing information because “it
could not have been the company’s goal to impose liability onto itself”); S.E.C. v. Berry, 2011 WL 825742 at *5 (N.D. Cal. Mar. 7, 2011)
(agreeing “that if a party lowers the shield of protection to foster an amicable relationship with the government, it should not then be able

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