The first seventy-two hours of a federal investigation
What a company does in the three days after a subpoena arrives shapes the case more than anything that happens at trial. Most of it is unglamorous.
A grand jury subpoena usually arrives on a Friday afternoon. That is not an accident. It maximises the chance that decisions get made over a weekend by people who are frightened and without counsel.
Preserve before you do anything else
Issue a litigation hold within hours, not days. Suspend automatic deletion policies across email, messaging platforms and mobile device management. Include the platforms nobody thinks of: the collaboration tool the sales team uses, the personal devices under a bring-your-own-device policy, the ephemeral messaging application someone installed for a supplier negotiation.
Deletion after notice, even innocent and automated deletion, converts a document case into an obstruction case. It is the most avoidable way a company turns a survivable problem into an existential one.
Deletion after notice converts a document case into an obstruction case. That conversion is what actually destroys companies.
Say less than you want to say
The instinct is to reassure the workforce. Resist the detailed version. A message that says more than the company knows to be true becomes an exhibit. Communicate that the company has received a request, that it is cooperating with counsel, that employees should preserve documents, and that anyone contacted directly may speak with counsel first. Nothing more.
Do not start interviewing people yet
Well-intentioned internal fact-finding conducted before counsel is engaged is frequently not privileged, is rarely documented correctly, and often contaminates the recollection of the witnesses who matter most. If the company later conducts a proper internal investigation, those early conversations are the first thing the government will ask about.
Decide who represents whom, in writing
Company counsel represents the company. Employees need to be told this clearly, in the form of an Upjohn warning, before any interview. Where an individual’s interests may diverge from the company’s, separate counsel should be arranged early. Conflicts do not become less expensive by being deferred.
None of this requires knowing whether the underlying conduct occurred. It requires only that the company behave, from hour one, like an organisation that will be judged on its response.