Responding to the Initiation of the Investigation
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CHAPTER 3
RESPONDING TO THE INITIATION
OF THE INVESTIGATION
This Chapter builds on the initial checklist to describe in more detail
how defense counsel may respond at the beginning of the investigation.
The best first steps depend on the investigative techniques used by the
U.S. Department of Justice’s Antitrust Division (Division) itself.
If defense counsel first learns of the investigation as the Division is
executing a search warrant, counsel must attempt to ensure that the
search does not extend beyond what is allowed by the warrant. If the
search does exceed its permitted scope, counsel can consider filing a
motion to suppress all or some of the fruits of that search.
The Division commonly interviews individual corporate executives
on the same day it executes a search warrant or serves a grand jury
subpoena duces tecum. Division attorneys are typically accompanied by
law enforcement agents during these interviews. “Knock-and-talk”
interviews, in which attorneys and agents arrive unannounced at the
home or workplace of targets and witnesses, are very common. If
possible, counsel should try to determine the scope of these interviews as
they are occurring and ensure that individual employees know that they
are not obligated to answer any such questions. At the same time, it is
important to remember that discouraging employees from cooperating
could constitute obstruction of justice.
The Division serves grand jury subpoenas in virtually every
investigation, even when it also executes search warrants. Counsel
should first advise the company to halt any document destruction
procedures immediately and to retain all documents even arguably
responsive to the subpoena. Although it is possible to file a motion to
quash or modify a grand jury subpoena, such motions are rare. It will
usually be more productive to seek to negotiate scope limitations,
extensions of time, and other conditions to reduce the burden of
responding. Counsel also will need to ensure that the attorney-client and
other privileges are protected, usually by preparing and disclosing a log
of documents withheld on grounds of privilege.
In some investigations, the Division has also used electronic
surveillance, including court-ordered and consensual monitoring.
Defense counsel may or may not know about the existence of any such
tapes or recordings at the beginning of the investigation, so it is
Antitrust Grand Jury Investigations Handbook
34
important to thoroughly interview any company employees about any
conversations with competitors or others that may have been of interest
to the Division.
A. The Search Warrant
Search warrants may be issued if there is probable cause to believe
that a crime has been committed, if the warrant describes the places to be
searched and the things to be seized with particularity, and if the
application is supported by a sworn affidavit.1 Because of these
particularity and oath requirements, the existence of a warrant may be a
sign that the Division already has an informant and that leniency is no
longer available.
1. Requirements for the Warrant
The Fourth Amendment governs search warrants, and it extends to
both individuals and corporations.2 The Fourth Amendment provides
that “no warrants shall issue, but upon probable cause . . . .”3 The court
must find probable cause to believe that a crime has been committed and
that evidence of that crime is located at the place specified in the warrant.
The government need not establish with certainty the allegations
underlying the requested warrant, but need merely show a “fair
probability.”4 “The task of the issuing magistrate is simply to make a
practical, common-sense decision whether, given all the circumstances
set forth in the affidavit before him, . . . there is a fair probability that
contraband or evidence of a crime will be found in a particular place.”5
1. U.S. CONST., amend. IV.
Clause of the Fourth Amendment protects commercial buildings as well
as private homes”). But see Michigan v. Clifford, 464 U.S. 287, 296 n.7
(1984) (expectations of privacy, and the protections flowing therefrom,
may be diminished in commercial premises under certain circumstances).
3. U.S. CONST. amend. IV. A comprehensive discussion of search and
seizure law is beyond the scope of this Handbook. For a more in-depth
discussion, see, e.g., JAMES CISSELL, FEDERAL CRIMINAL TRIALS § 2.5
(2020 ed.); 2 WAYNE R. LAFAVE, ET A L., CRIMINAL PROCEDURE § 3.4
(4th ed. 2015).
4. Illinois v. Gates, 462 U.S. 213, 238 (1983).
5. Id.; see also Massachusetts v. Upton, 466 U.S. 727, 728 (1984) (per
curiam).
Responding to Initiation of Investigation
35
Rule 41 of the Federal Rules of Criminal Procedure sets forth the
procedure for obtaining a warrant. Typically, applications are supported
by an affidavit signed by a law enforcement agent. The affidavit sets
forth the information believed to establish the necessary probable cause.
Warrants also may be based on oral testimony if there is unusual
urgency, but that procedure is rarely used in antitrust investigations. The
affidavit may rely upon hearsay evidence, as long as it is sufficiently
reliable to establish probable cause.6 Rule 41(b) permits a warrant to be
issued to seize books, papers, tangible objects, and electronically stored
information.7 Rule 41(c) also permits a magistrate to issue an arrest
warrant, which the Antitrust Division may seek in order to detain a
foreign national who could otherwise escape prosecution by returning to
their home country.
The exponential increase in electronically stored information (ESI)
has had a significant effect on how antitrust search warrants are sought
and executed. For example, the Fourth Amendment provides that the
warrant must “particularly describ[e] the place to be searched, an d the
persons or things to be seized.”8 Yet because it is impossible in most
cases for agents to review and seize only the ESI related to the antitrust
crime being investigated, Rule 41 was amended in 2009 to permit a two-
step process by which entire storage media are seized (or imaged on site)
and then reviewed later for responsiveness. 9 A filter, or “taint” team, is
then typically established to screen for potentially privileged
documents.10
The particularity of the “place” to search for ESI also raises issues
given that the precise location of a company’s computer servers may not
be known. This usually does not raise practical problems if the server is
located close to the place specified in the warrant, such as on a different
6. FED. R. EVID. 1101(D)(3) (rules of evidence do not apply to search
(1965) (hearsay may be a basis for issuance of a warrant so long as a
substantial basis exists for crediting the hearsay).
7. FED. R. CRIM. P. 41(a), (c), (e).
8. U.S. CONST., amend. IV.
9. FED. R. CRIM P. 41(e)(2)(B); id. at Advisory Committee Notes to 2009
Amendments.
10. For an analysis of the search and seizure issues raised by ESI, see U .S
DEP’T OF JUSTICE, CRIMINAL DIVISION, SEARCHING AND SEIZING
COMPUTERS AND OBTAINING ELECTRONIC EVIDENCE IN CRIMINAL
INVESTIGATIONS (3d ed.) available at https://www.justice.gov/sites/
default/ files/criminal-ccips/legacy/2015/01/14/ssmanual2009.pdf.
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