'We have a warrant to search your facility.'.

• Author: Yannett, Bruce E.
• Position: How to prepare for and respond to a search warrant

It could happen to anyone. Seven steps every company should take in preparing for and responding to a search warrant.

To most corporate counsel, the idea of federal agents storming into the company's oak-paneled reception area waiving a search warrant seeking the "instrumentalities" of crime seems absurd and remote - the stuff of "Goodfellas," not "Wall Street." That's probably what they thought at Columbia Health Care, Archer-Daniels-Midland, and Northrop Grumman until agents, armed with criminal search warrants, seized truckloads of documents. If the government comes knocking at your company's door, they will come prepared to obtain as much incriminating information as possible and take full advantage of the element of surprise - indeed, that is most likely the reason they have proceeded by warrant rather than grand jury subpoena. The government has a plan: Do you?

The importance of establishing a protocol for responding to a search warrant is difficult to overstate. Most employees will be frightened and demoralized by the sight of agents rummaging through their files, and may, if not properly instructed, either volunteer information or provide damaging admissions in response to the specific and often scripted inquiries by the government agents conducting the search. Government agents, if not properly monitored, may conduct searches that exceed the scope of the warrant (later relying on the "good faith" or "consent" exceptions to the exclusionary rule) and may seize highly sensitive, privileged, and confidential documents that your company was not legally obligated to turn over. Educating your employees, having in place established procedures, and designating knowledgeable point people to supervise the agents' search can dramatically affect the course of subsequent government actions concerning your company and limit the disruption such an extensive government intrusion into the company's affairs will inevitably cause. What follows is a list of steps every company should consider taking in preparing for and responding to a search warrant. These suggested steps are broad guidelines and, of course, should be tailored to each company's specific needs.

Step One: Formulate A Written Plan

Formulation of a written plan is the first step in creating an effective protocol for responding to a search warrant.

First, the plan should designate "point persons" and backup "point persons" who will be primarily responsible for coordinating the response. The written plan should contain detailed instructions on how to contact them in the event that a search warrant is executed. The point person must be sufficiently senior in the company (or division) to command respect of subordinates, but must be one who will likely be on-site if agents attempt to execute a warrant. (Backup point persons should be designated in the event that the primary point person is not immediately reachable when the warrant is served.) The point person must:

* Be thoroughly familiar with the company's search warrant response procedure.

* Know where the company's privileged documents are stored so that agents are warned not to search that area (see Step Six below).

* Have access to a videocassette recorder, with fully charged batteries, and a four-hour blank videocassette, in order to record the search. It might be advisable, in fact, to have several cameras on hand in case the agents "branch off" and conduct searches in different areas of the company simultaneously.

Second, the plan should designate both in-house and outside counsel to contact immediately as the search warrant is being executed. The outside counsel should be experienced in criminal matters and the in-house counsel should be adequately prepared to negotiate with the government agents on-site to stay execution of the warrant or modify its scope (see Steps Four and Five below).

Third, the plan should include a prepared memorandum to be distributed to all affected employees immediately after the agents arrive. The memorandum should inform the employees, in plain English, that while they should be cooperative and polite toward the government agents, they are under no obligation to answer any substantive questions or volunteer any information, and that to do so might not be in either their or the company's best interests. To avoid charges of obstruction of justice, however, under no circumstances should the employees be directed not to speak to the agents. The employees, furthermore, should be instructed to provide answers to questions regarding the location of documents and other non-substantive information. This memorandum should be...