CCCP Government Investigation Response 2 — Questions and Answers
Question 1: When a company receives a grand jury subpoena for documents, what is the immediate first step compliance should take?
- Begin collecting and reviewing all responsive documents
- Issue a litigation hold to preserve all potentially relevant records (Correct answer)
- Notify the SEC within 24 hours of receipt
- Instruct employees to delete non-essential files to reduce scope
Correct answer: Issue a litigation hold to preserve all potentially relevant records
A litigation hold must be issued immediately upon receipt of a subpoena to prevent spoliation of evidence, which can result in sanctions.
Question 2: Which privilege protects communications between a company's in-house counsel and employees made for the purpose of obtaining legal advice during an investigation?
- Work product doctrine
- Attorney-client privilege (Correct answer)
- Fifth Amendment privilege
- Common interest privilege
Correct answer: Attorney-client privilege
The attorney-client privilege protects confidential communications between lawyers and clients (including employees) made for purposes of obtaining legal advice.
Question 3: What is the significance of a 'target letter' received from the Department of Justice?
- It invites the company to participate as a cooperating witness
- It notifies the recipient that they are the subject of a grand jury investigation with likely indictment (Correct answer)
- It is a formal request for voluntary document production
- It confirms the investigation has been closed without charges
Correct answer: It notifies the recipient that they are the subject of a grand jury investigation with likely indictment
A DOJ target letter indicates the recipient is the primary focus of a grand jury investigation and that prosecutors believe they have substantial evidence of a crime.
Question 4: Under the Upjohn warnings, what must company counsel tell an employee before conducting an internal investigation interview?
- The employee has a right to receive a copy of the interview transcript
- The attorney represents the company, not the employee, and may share information with management (Correct answer)
- The interview is confidential and cannot be shared with government investigators
- The employee must answer all questions or face termination
Correct answer: The attorney represents the company, not the employee, and may share information with management
Upjohn warnings inform employees that company counsel represents the company's interests, not theirs, and that the company controls the privilege and may disclose the interview contents.
Question 5: What is 'proffer immunity' in the context of government investigations?
- A court order protecting trade secrets from disclosure to regulators
- A limited agreement allowing a witness to provide information without it being used directly against them (Correct answer)
- Full transactional immunity granted by the DOJ to a corporate officer
- Protection from civil suits arising from voluntary disclosure
Correct answer: A limited agreement allowing a witness to provide information without it being used directly against them
A proffer agreement allows a witness to share information with prosecutors in a controlled setting, with limitations on how that information can be directly used against them.
Question 6: When is it appropriate for a company to voluntarily disclose a potential FCPA violation to the DOJ or SEC?
- Only after a full internal investigation has been completed and guilt is certain
- When the company discovers potential misconduct, weighing disclosure benefits against investigation risk (Correct answer)
- Voluntary disclosure is never advisable as it guarantees prosecution
- Only when the government has already initiated an investigation
Correct answer: When the company discovers potential misconduct, weighing disclosure benefits against investigation risk
Companies must weigh potential benefits of voluntary disclosure (cooperation credit, reduced penalties) against investigation risks, typically after conducting a preliminary internal review.
Question 7: What is the 'Yates Memo' most known for in the context of corporate investigations?
- Establishing mandatory minimum sentences for FCPA violations
- Directing DOJ attorneys to focus on individual accountability in corporate criminal investigations (Correct answer)
- Creating a new framework for deferred prosecution agreements
- Requiring companies to maintain a compliance officer at the C-suite level
Correct answer: Directing DOJ attorneys to focus on individual accountability in corporate criminal investigations
The Yates Memo (2015) directed DOJ attorneys to prioritize identifying and holding individuals accountable in corporate misconduct cases as a condition of corporate cooperation credit.
CCCP Government Investigation Response 2
When a company receives a grand jury subpoena for documents, what is the immediate first step compliance should take?