The Press And Feds Are at Your Door: Are You Ready?

1. The Press And Feds Are at Your Door:Are You Ready? Tom Lindley2009 13530890

2. Start with humans:Is it Press, Agency, or Officer? • Different rules for each • Discuss Press, then Agents and Officers

3. If it is the Press: • Do you or your business care about public image? If not, then you can say: “Go away.” But if you do, you must talk with the reporter. • Always balance before engaging: is risk worth benefit? (Can hurt future or help future) • Five rules of engagement: • Develop a Simple Primary Theme. • Prepare for Difficult Questions. • Be Positive. • Write Down and Memorize Important Responses. • Bridge to Your Positive Messages and Themes.

4. Develop a Simple Primary Theme • Allows you to influence the press conference or interview and ensure that you get your message out. • Helps avoid becoming the victim of the interviewer's agenda. • Less likely to be distracted and lose concentration.

5. Prepare for Difficult Questions; Be Positive • Anticipate the worst, and the most difficult, questions. Minimize the possibility of ambush. • Negative statements do nothing for your image or the image of your company.

6. Bridge to Your Positive Messages and Themes • Certain words and phrases can be used to transfer from the questioner's agenda to your positive messages and themes. • Examples of bridging words and phrases include: • (a) "Yes, but . . ."; • (b) "No, but let me explain . . ."; • (c) "I don't know about that, but here's what I do know"; and • (d) "What's more important now, however, is . . ."

7. Responding "No Comment" Is a No-No. • “No comment” is portrayed very negatively. • Better alternatives: • (a) "I cannot comment on that now, but I will have plenty to say later"; • (b) "I'm here today to talk about the spill and our successful cleanup, not other topics or unfounded allegations"; or • (c) "We will respond to that question at the appropriate time."

8. Dealing With Stakeouts. • Remain positive • Ignore their continuous questions. • If you smile, wave, wish them well, and ignore their taunting questions, it is highly unlikely that you will ever see that footage on television.

9. Off-the-Record Comments-there are none. • Reporters use this tactic. Don't fall for it. The information will be attributed to "an unnamed source close to the investigation." • Nothing is ever really off the record.

10. If It Is An Agency Or An Officer • Rules of Engagement Change! • Often no choice about responding. • You might want to cooperate: • Agencies will be with you forever. • Agencies might be neutral before you start the interaction. • You might want to do minimum required by law: • People with warrants are not neutral.

11. Four methods of access • Consent • Agents prefer: consenting may be advisable • Note: Emergencies or “Plain View” access • Nonconsensual warrantless inspection • Statute must authorize and define search’s scope • “Highly regulated industry” or “Licensing” exception • Might have consented in permit • In both, do ask “why us?”

12. Four methods of access • Administrative inspection warrant • Normally used when access is denied for routine compliance check or when agency receives "written substantiated complaint" • Issued for less than probable cause to believe crime committed • Requires a magistrate's (judge’s) signature • Restricted to inspecting or photographing only that listed in the inspection warrant • May be used only to gather evidence for civil enforcement

13. Four methods of access • Criminal search warrant • Requires “probable cause” to believe that you or your business has committed a crime • Magistrate's (judge’s) signature required • This is not your neutral agency! • Agency is at your door because it believes there has been or is on-going criminal activity • Agency is seeking proof to convict a "wrongdoer" • Agency is not your friend here, nor is it amenable to frequently used civil procedures

14. Responding during criminal investigations • Time is very limited • Assemble your defense team immediately • Immediately communicate to all employees both • nature of investigation, • importance of not interfering with warrants • and importance of avoiding false or misleading statements • If possible, send home non-essential personnel

15. PRINCIPLES OF CORPORATE CRIMINAL LIABILITY • A company may be held criminally liable for the illegal acts of a single employee, regardless of the employee’s position within the corporation. • Criminal liability attaches if the employee’s actions were: • Within the scope of his duties; and • Intended, at least in part, to benefit the company.

16. CORPORATE CRIMINAL LIABILITY • An act is within the scope of employment if it is generally related to the employee's duties, even if not approved by management. • Even when an employee acts contrary to company policies and specific directives, a company can still be held criminally liable.

17. CORPORATE CRIMINAL LIABILITY • A company may be held criminally liable if any part of the rogue employee’s motivation was to benefit the company, even though the employee was acting primarily to benefit himself. • A company need not actually receive a benefit from its employee’s illegal conduct to be held criminally liable. • A corporation does not have a 5th Amendment privilege against self-incrimination

18. Responding during criminal investigations • When a warrant has been issued, federal and state laws authorize force to effect it • Interfering with an agent carrying out a warrant can be a serious crime • Statutes provide for jail time (up to several years) for obstruction of agent with warrant • But nothing requires you to do the officers' work • Be professional

19. If you can review the warrant • Determine its scope: are there any • limits on areas of access? • limits on types of documents? • limits on types of activities? • If agents exceed limits, do not obstruct but do advise them, with witnesses present, that they have exceeded the warrant's scope • If agents ask for consent to go beyond the warrant, do not give it without the appropriate high-level approval and all due consideration • Do not give any appearance of consent (not even just silence) if you are not consenting

20. While the agents are present • GOAL: same record as agents/officers • Accompany each and every agent everywhere and take detailed notes of • which documents are taken from where • which samples are taken from where • which personnel are talked with • When possible, also take photos/ video of activities • Involve high-level personnel familiar with the need not to obstruct, but also to make detailed, accurate observations • Do not freely convey information

21. If any documents are taken • For every document: • without interfering, list each document or set of documents and list where it is taken from • Try to reach agreement to retain copies, or even originals, so that your business can continue • For confidential documents: • If attorney-client documents are taken, note that fact and, in the presence of witnesses, state your objection • If confidential business information is taken, tell agent, in presence of witnesses, that the documents are protected and cite authority

22. If physical samples are taken • Note or request agent’s or officer’s methodology • Note promptly to agency the need for time-awareness • samples must be tested within certain times • Through counsel, have an outside consultant take splits, or best approximation of a split

23. If employees are asked questions • Distinguish between management and non-supervisory employees • Rules may differ • Management nearly always binds entity and can refuse to answer without attorney present • Under some statutes (e.g., OSHA), non-supervisory employees can speak to investigators with NO employer representative present

24. If employees are asked questions • Agents acting under warrant usually have no right to interview employees during search, but they will try and often succeed • Where possible and appropriate, counsel should intercede and advise employees that they are not obliged to speak to or aid the agents • Counsel cannot forbid an employee from talking with agents on his/her own time

25. If employees are asked questions • Arrange discreetly but immediately for each person to be debriefed by counsel • Inform each person that • he or she has Fifth Amendment rights • absent a subpoena, he or she may have no obligation to submit to interviews • Inform each person that • he or she has a right to own counsel • corporate counsel is not their counsel • corporation may/will provide counsel (have policy ready and address it with each person)

26. One more way for access: the “AMBUSH INTERVIEW” • Example: covert investigation followed by multiple simultaneous evening visits to executives’ homes • Agents will usually start friendly, in friendly setting, BUT … • No obligation to talk at that point, and • Frequently better to talk with attorney and management first

27. SURVIVAL IS BEST ARRANGED IN ADVANCE: PREPARE! • Be "inspection ready" • You cannot "prepare” when officers arrive • Regular environmental and other audit programs • Strong company policy on environmental performance and other compliance, including: • prompt reporting of noncompliance events • expeditious corrective actions when needed • Decide in advance to whom counsel will be provided • Manual and wallet cards with key points and numbers

28. Ongoing prerequisites to survival • Train company personnel • Policy re “drop-ins and ambushes” • Bullet list of who to do what/who to call • How to answer: honestly but carefully and do not guess • Anticipate press interest • Develop plan • Select and announce spokesperson • Prepare safety orientation • Anticipate documentation needs • Assign corrective action response team

29. Safety orientation • Request/require that your safety rules be followed • Provide safety hats and other routine safety items (including films) as for any visitor • Agency personnel do not have to undergo your particular training • can be done for the initial inspection team • can be done each day for new inspectors

30. Develop "ground rules" for agency personnel • Request a schedule of activities • Bring requested records/documents to the inspector if possible/allowed • Key staff must accompany inspectors for all field work and records reviews • Key staff will participate in all field inspections • Recognize that you may have to ask for a short "time out" to consult legal counsel • Ask for entry, exit and daily exit briefings

31. Assignment of correction action response team • Preassign responsibility for correcting any (potential) violations • Remedy violations immediately if possible and inform inspectors as soon as possible • Where remedies require long time frames, begin efforts immediately • At day's end, specifically ask what violations were identified

32. Reduce or Avoid Risks with Internal Compliance Audits! • Where you can avoid such a lawsuit, less costly to do so • Use a regular audit program to review operations and permitting • Do so through attorney/client and state privileges

33. RESPONDING TO A GRAND JURY SUBPOENA • Preserve all documents, e-mail and data. • Suspend document retention policy. • Do not destroy anything! • Investigate

34. GRAND JURY SUBPOENAS • Obtain assistance from experienced counsel who is familiar with the investigating agency • Determine the purpose of the subpoena. • Determine whether the company or any of its employees are targets of the investigation or just witnesses.

35. GRAND JURY SUBPOENAS • It may be appropriate to narrow the scope of the subpoena. • Clarify what documents and information will be responsive to the subpoena. • Find out whether you can produce copies of documents instead of originals.

36. GRAND JURY SUBPOENAS • Meet with senior management, information systems personnel and those employees directly involved with subject(s) described in the subpoena to identify all sources of responsive documents and data. • Assign the task of searching for and delivering to the designated corporate officer the responsive documents.

37. GRAND JURY SUBPOENAS • Review all documents to determine whether they contain attorney-client privileged communications or constitute attorney work product. • If subpoenaed documents include trade secrets or confidential business information, request an agreement with the government to avoid unnecessary disclosure.

38. GRAND JURY SUBPOENAS • Mark all "sensitive documents to be produced “CONFIDENTIAL May be subject to 18 U.S.C. § 1905." • Number and copy each document before production. • Numbering the documents will prevent confusion as to which documents have been produced.Numbering will facilitate quick reference in communications.

39. GRAND JURY SUBPOENAS • Produce all subpoenaed, non-privileged documents. • Failure to comply will heighten the government’s interest and may result in obstruction of justice charges. • Move to quash if subpoena is too broad.

40. QUESTIONS? • Tom Lindley • 503-727-2032 • tlindley@perkinscoie.com • www.perkinscoie.com