Page 30 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

A. Role of Investigatory Counsel in Follow-on Investigations and
Civil Litigation

Once the investigation has concluded, the company may be tempted to use
Investigatory Counsel to defend government investigations and civil litigation. While this would
perhaps reduce legal fees, many experienced general counsel and practitioners believe that companies
should not utilize Investigatory Counsel as its defense counsel, lest it call into question Investigatory
Counsel’s independence and compromise the inquiry’s legitimacy. We agree and recommend that
counsel other than Investigatory Counsel handle such follow-on legal matters.

B. Use of Investigatory Counsel’s Work Product

In an effort to minimize expenses and maximize the speed and effectiveness of
preparation in the face of civil litigation or government investigations, company counsel post-
investigation might request use of the documents and other databases that Investigatory Counsel
accumulated. We recommend that such documents and databases be made available for that use,
especially if the same materials have already been disclosed to the government. However, before
doing so, Investigatory Counsel should consider removing material that reflects its internal thought
processes in order to preserve privileges and maintain Investigatory Counsel’s independence, both
actual and perceived. If Investigatory Counsel intends to share its internal thought processes with
defense counsel, it should consider whether a JDA to preserve privilege is appropriate.

Among the more difficult issues facing company counsel that has inherited such
a document depository and work product is the extent to which they should be made available to
counsel for individual present or former employees who might also be facing civil litigation and
government investigations post-investigation. We believe that, absent genuine concerns about
obstruction of justice, fairness dictates that the current or former employee’s own emails and other
documents to which she had access should be made available to such individuals, especially if they
have already been made available to the government.
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VI. Issues in Cross-Border Internal Investigations

When properly conducted, internal investigations can provide immeasurable protection to the
companies that utilize them either by deterring full-blown government involvement or demonstrating
good faith in correcting any blunders. However, as the corporate world takes on an increasingly
global footprint, internal investigations are more likely than ever to venture into transnational
jurisdictions. This creates an additional set of challenges. At the outset of any cross-border
investigation, Investigatory Counsel should hire local counsel to provide guidance on how a particular
jurisdiction’s laws will apply to these challenges. The following constitutes a non-exhaustive list of
issues to consider in cross-border internal investigations. 86

85 It should be noted that the DOJ is on record in at least one option backdating case that disclosure of witness interview
memoranda of Investigatory Counsel to counsel for derivative plaintiffs, and other parties, would constitute premature disclosure of the
substance of testimony from potential government witnesses and would facilitate efforts by subjects and potential criminal defendants
to manufacture evidence and tailor their testimony and defenses to conform to the Government’s proof. In re United Health Group
Shareholder Derivative Litigation, USDC, D.Minn., Civil No. 06-1216JMR/FLN.
86 A comprehensive discussion of cross-border investigations is beyond the scope of this paper. This section, however, introduces a

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