Introduction

When the company learns that it is the focus of a government investigation[1]--whether from investigators attempting home interviews of employees, the service of a subpoena or search warrant, or some other means--the general counsel must be ready to respond immediately and navigate a minefield of complex issues. Because critical decisions must be made quickly and often without the benefit of complete information, the challenges and risks are substantial.

Identifying the issues that need to be considered in the crucial first hours and days is itself a daunting task. These issues include: preservation of documents, particularly electronic data; disclosure requirements; assessment of the accuracy of imminent public statements and/or SEC filings; whether restrictions should be imposed on trading in the company's securities; whether to retain outside counsel and who to retain; internal investigation issues (e.g., should officers/employees have separate counsel and who should bear these costs?); preparing for potenial press inquiries and collateral civil litigation; assessing the need for remedial measures; and reviewing the plans in place if the government executes a search warrant.

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