Protecting Attorney-Client Communications, Attorney Work Product, and Data

Pages81-154
81
CHAPTER III
PROTECTING ATTORNEY-CLIENT
COMMUNICATIONS, ATTORNEY WORK
PRODUCT, AND DATA
In the course of a cartel investigation or merger review involving
multiple enforcement authorities, information may be transferred from
one country to another. Cross-border transfer can pose significant risks to
preservation of the attorney-client privilege and protection of attorney
work product and raise daunting data security issues. This chapter looks,
first, at the various means by which documents and data are obtained by
enforcement agencies, followed by discussion of how privileged
communications and attorney work product can be protected and data
security preserved. The principal focus is on practice and issues under
United States law, with attention to law and procedure outside of the
United States as appropriate. The practitioner must, in every case,
carefully examine the impact local law will have on the security of
information exchanged with foreign enforcement authorities.
A. How Documents and Data Are Obtained by Enforcement
Agencies
Document and data collection efforts by an enforcement agency must
be based on proper legal authority, particularly if challenges are later
raised to the seizure of documents or data.1 Enforcement agencies may
obtain documents and data through a variety of means, reviewed below.
1. INTL COMPETITION NETWORK, CARTEL ENFORCEMENT SUBGROUP 2-
ICN CARTELS WORKING GROUP, ANTI-CARTEL ENFORCEMENT
MANUAL, CHAPTER ON DIGITAL EVIDENCE GATHERING § 4 (2014)
[hereinafter DIGITAL EVIDENCE GATHERING], available at
http://www.internationalcompetitionnetwork.org/uploads/library/doc1006
.pdf (“Competition agencies should carefully check and ensure that they
have the authority to request, search or compel business records that are
contained on a variety devices (e.g. telephones, laptops, tablets and so on)
that belong to company employees.” (italics in original)).
82 International Investigations and Merger Reviews
1.
Voluntary vs. Compelled Production
Production of documents or data to an antitrust enforcement agency
falls into two broad categories: voluntary and compelled.2 Occasionally,
an enforcement authority may use both forms of production by, for
example, issuing a subpoena to a witness upon conclusion of a voluntary
interview.
a. Voluntary Production
Antitrust enforcement agencies receive a substantial amount of
information voluntarily. In some instances, voluntarily disclosed
information provides evidence that an agency would otherwise have
difficulty obtaining or may not otherwise be aware of.
Information can be provided voluntarily in a number of scenarios,
depending on the jurisdiction, case posture, and location of the
information. Information may be disclosed in interviews or during
leniency and cooperation procedures in furtherance of negotiation of a
plea agreement.
(1) Voluntary Interviews and Requests for Information
Voluntary interviews in criminal investigations, sometimes called
“knock and talks” or “drop ins,” provide one common means for
investigators to obtain information.3 The voluntary interview may be
2. See generally U.S. DEPT OF JUSTICE, ANTITRUST DIVISION MANUAL III-
84 (2019) [hereinafter ANTITRUST DIVISION MANUAL], available at
https://www.justice.gov/atr/file/761166/download (noting that as part of
an investigative plan, the Antitrust Division staff should identify
“[p]otential sources of documentary evidence and whether to obtain such
evidence voluntarily, by subpoena, or by search warrant”); id. at III-90
(“If probable cause does not exist at the beginning of an investigation,
staff should consider the possibility of developing probable cause before
issuing compulsory process, making voluntary requests, conducting
interviews, or taking other steps that would make the investigation
public.”).
3. See, e.g., United States v. Thomas, 430 F.3d 274, 277 (6th Cir. 2005)
(recognizing a “knock and talk” as “consensual encounters” and “as a
legitimate investigative technique at the home of a suspect or an
individual with information about an investigation” (citing United States
v. Chambers, 395 F.3d 563, 568 n.2 (6th Cir. 2005))); see generally
Jayme W. Holcomb, Knock and Talks, FBI LAW ENFT BULLETIN, at 22–
Protecting Attorney-Client Communications 83
pursued during the early stages of an investigation or where insufficient
evidence exists to establish the probable cause necessary to support a
search warrant.
In the United States, the Antitrust Division (Antitrust Division) of
the Department of Justice (DOJ) typically sends a trial attorney with an
investigator to the residence of an executive of a target company during
the investigation. The resulting interview, often conducted in the
morning, is voluntary. The executive can decline the interview or ask for
counsel to be present. Sometimes, the executive elects to proceed without
counsel. The failure to provide truthful information may result in a
felony prosecution for knowingly providing materially false
information.4
During the interview, the interviewer may ask questions about the
means used by the interviewee to communicate with others (such as
identifying email or chat communication channels or ephemeral
messaging platforms5), the types of devices used (laptops, cell phones),
and the location of devices and data. A request may also be made to view
or obtain digital data. This request is often memorialized with a consent
form to demonstrate that the interviewee voluntarily provided the
information.
The information obtained may be used to advance the investigation
and identify new leads, including to provide probable cause to support a
search warrant. At the conclusion of the voluntary interview, the agents
may provide the executive with a subpoena to obtain further evidence.
32 (Aug. 2006), available at https://leb.fbi.gov/file-
repository/archives/august06leb.pdf/view.
5. The U.S. Department of Justice has issued guidance for the retention of
ephemeral messaging platforms in investigations. See U.S. DEPT OF
JUSTICE, JUSTICE MANUAL § 9-47.120(3)(c) (FCPA Corporate
Enforcement Policy) (2019) [hereinafter JUSTICE MANUAL], available at
https://www.justice.gov/jm/jm-9-47000-foreign-corrupt-practices-act-
1977#9-47.120 (noting requirement for “[a]ppropriate retention of
business records, and prohibiting the improper destruction or deletion of
business records, including implementing appropriate guidance and
controls on the use of personal communications and ephemeral
messaging platforms that undermine the company’s ability to
appropriately retain business records or communications or otherwise
comply with the company’s document retention policies or legal
obligations”).

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