Page 39 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

When involved in cross-border or international investigations, Investigatory Counsel
should first hire local counsel to advise on the myriad of complex local-law issues that arise in such
investigations. Investigatory Counsel must consider a number of factors when conducting the inquiry,
including: (1) varying conceptions of attorney-client privilege and work product protections could
have an impact on a governmental entity having access to Investigatory Counsel’s work; (2) where
data is maintained could cause the investigation to run afoul of local data privacy laws; (3) whether
employees are required to cooperate with the investigation could impact the development of relevant
facts; (4) cultural and linguistic differences could have an impact on appropriate and effective
questioning of witnesses.

Investigatory Counsel generally should not be used as company defense counsel in civil or
criminal litigation or investigations that follow the internal investigation.

In connection with 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. Before doing so,
however, 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, and whether a JDA to preserve privilege is appropriate. Similarly, we believe
that, absent genuine concerns about obstruction of justice, fairness dictates that the current or former
employee’s own emails and other documents should be made available to such individuals in
connection with civil litigation or government investigations, especially when they may have already
been made available to the government.

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