Womble Perspectives
Welcome to Womble Perspectives, where we explore a wide range of topics from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever-changing legal landscape. With a focus on innovation, collaboration and client service, we are committed to delivering exceptional value to our clients and to the communities we serve.
Womble Perspectives
When ICE or FBI Arrive at Your Door: Avoiding Missteps and the Evening News
No business wants to be searched or raided by a federal agency, but it does happen, as we have seen repeatedly in the news and elsewhere. In this episode, Luke Cass and Claire Rauscher, members of WBD's White Collar team talk through the process of what exactly happens when ICE or the FBI knocks on the door of a business.
Welcome to Womble Perspectives, where we explore a wide range of topics, from the latest legal updates to industry trends to the business of law. Our team of lawyers, professionals and occasional outside guests will take you through the most pressing issues facing businesses today and provide practical and actionable advice to help you navigate the ever changing legal landscape.
With a focus on innovation, collaboration and client service. We are committed to delivering exceptional value to our clients and to the communities we serve. And now our latest episode.
Luke Cass
Thank you for joining us for this episode “when ICE or FBI arrive at your door, avoiding missteps and the Evening News.” My name is Luke Cass, I'm a partner at Womble Bond Dickinson in Washington, DC. I'm joined by Claire Rauscher, who is also a partner at Womble Bond in Charlotte and Washington.
DC. We’re both are members of the White Collar Defense and Investigations Team and have a lot of experience dealing with Federal investigations, both from the defense side as well as my time as a former federal prosecutor.
Claire, let's kick it off.
No business wants to be searched or raided by a federal agency, but it does happen, as we have seen repeatedly in the news and elsewhere. Let's talk through the process. What exactly happens when ICE or the FBI knocks on the door of a business?
Claire Rauscher
Well, usually it's shock. Most people aren't ready for it.
They're not told in advance, and so everybody at the business or manufacturing plant is caught unaware. So it's really quite an unusual circumstance and obviously it doesn't happen every day.
Luke Cass
search warrants give the government an incredible tactical advantage in any investigation. By the time they knock on that door, they have already proven to a judge by probable cause that evidence of a crime is likely present at that particular location.
The application, the affidavit that supports the search warrant and the search warrant are all sealed. They don't announce that they are coming to avoid potential obstruction and set the stage to gather witness statements.
So for any business, whether you have 10 or 10,000 employees, this is going to be a tremendous disruption. But I think Claire would agree with me. It can be prepared for to make it less worse.
Claire, it sort of reminds me of General Eisenhower's remarks where he said plans are useless, but planning is everything.
What can companies do to plan for this event to minimize disruption and maximize their ability to make it less of an advantage for the government?
Claire Rauscher
So essentially the key here is that all businesses need to have a plan. You know they need to be ready for this potential eventuality. Nobody expects this to happen, right?
Unless you're involved in some kind of a massive criminal enterprise, most companies don't expect this to happen.
And that's what, of course, the agents are counting on because the element of surprise gives them an incredible advantage.
So, all companies should have a plan of what to do when they come.
And when I say a plan, it's something that's written, something that's trained on. The companies that are the most successful in dealing with this or those who actually do what we call a tabletop exercise where they actually run through what actually happens when they come in the door.
So it's so important to think about this in advance because what happens is that if there is a search or raid of a corporation or company or an office and you're not ready, literally, after the fact, you're going to go. “Gee, I really wish we had thought about this and had more of a plan.” So, really that's important.
Luke Cass
And the tabletop exercise that Claire's describing is everything from training the front reception desk to ask for things like the name of the agent and the agency. Ask for things like a copy of the warrant and make sure you get it to the right person.
Hopefully that's someone like in house counsel who then contacts outside counsel so that steps are taken to make sure that this is performed as smoothly as possible and that there are measures taken on the back end once they leave to see the path forward.
Claire Rauscher
So you know, recognizing every single case is different.
What types of information are usually the agents looking for when they actually get to the place of business?
Luke Cass
So typically they're looking for documents and records, whether those are actual physical copies or whether they're digital copies. So they'll come in and start with what is called an evidence response team that is a subunit of the of the FBI, and they'll be case agents as well, and they'll start marking different rooms to designate where materials were collected from. And they'll put up papers designating, and they'll have a map before they come, when they do this, and they'll have a pretty good idea where items are.
They may ask for assistance in having the company identify the location of servers. I don't think there's anything wrong with assisting them, you just want to make sure you're not consenting to it, that it is pursuant to a warrant, and they have authorized access to those materials. And then they start either copying the files with their digital forensic tools or physically collecting documents.
And Claire, how long does this typically take?
Claire Rauscher
It takes as long as they want and what they need to get the information. So essentially it depends on how long, actually, how big the facility is. You know, if it's a very big office with many offices and the search warrant, you know, most search warrants are very broad in their description of the things that they're able to seize.
So you know, they can go from, you know, cube to cube and start imaging computers and taking cell phones and taking documents. So it can be, you know, as short as a couple of hours and as long as more than one day. You know, they may have to come back, especially if they're imaging servers and various things like, you know, various electronics.
Sometimes they'll stay all night long and go into the next day. So it really depends on the size and also the scope of the warrant, and you know the breadth of things that they're looking for and authorized to take.
So, you know eventually, what happens, Luke, after the investigators? Finally, they think they've got all the information and they come to the person who is in charge and hands them the inventory. What happens next?
Luke Cass
So that's when the tornado passes. That's when the real work for in house counsel and outside counsel really begins. I think you want to set up a post search meeting with Council appropriate management. You want to conduct a full download of what happened as detailed as possible and in the planning that Claire referenced, one of the things will be to designate someone who will essentially, as much as possible, shadow the agent and see what files were collected, either digitally or physically, and just get as detailed a recollection as possible of how that was done and what specifically was taken so that that can then be conveyed onto in house and outside counsel, and also review an inventory and determine what was taken.
There's going to be a lot of questions from employees potentially from the media, so dealing with a response and having a response strategy for those things are really important. Even things like a litigation hold, you are now on notice that a federal investigation exists.
So you want to make sure no records are destroyed and that relevant records are collected and then talk about how a privileged parallel investigation to the federal investigation will be conducted? Should that be done in house, should that be done by outside counsel?
What kind of scope of that investigation should be done and who is that Council reporting to? Is it the board? Is it the C-Suite specifically.
And then you want to talk about witness interviews and what those look like as well.
So the real sleeves rolling up and work to be done happens after that search warrant is executed. Because as I said at the top of this episode, you know there has been probable cause presented that an evidence of a crime existed in that particular location.
So I think the only responsible thing to do is to investigate that if you are a company.
Claire, let me know if you have anything to add to that.
Claire Rauscher
Luke, you talked about interviews. Now, are these search warrants - I mean, they allow interviews - Tell me what happens if they want to, they end up going to somebody talking to them.
Are they allowed to do that?
Luke Cass
They sure are, and often that is done hand in glove with the execution of the search warrant, and they'll often ask folks in the company. Can you bring these employees to this conference room? And we want to talk to them one at a time or separately.
And that is part of the planning that goes into these tabletop exercises is letting employees know what their rights are. That they are, of course free to speak with whomever they want to speak with. They're not obligated to do that. It's not clear what, if any, exposure that employee may have. That's something outside counsel needs to communicate with the assistant US attorney about.
That is most likely not going to be on the site. You're going to want to ask as company counsel. “Hey, can we be present for those witness interviews?”
So there's a lot of education that needs to go into that so the employee can make an informed decision rather than being ambushed by a score of federal agents that have just popped into the office.
Claire Rauscher
You know, it's interesting, Luke. We need to talk about the coordination. You know, most people don't realize that the agents have these big meetings in advance of the searches and plot all this out. They plot out, you know, the not only the map they plot by who they want to talk to and all of that. So it's extremely coordinated.
It's not like in TV when they just sort of rush in. I mean these folks know what they want and know how to get there.
Luke Cass
Absolutely. And. And you know, they could ask employees, for example, is that your company phone? Is that a BYOD or is it your device, but there's a portal for the company? Does that have responsive records?
And all of a sudden, employee doesn't realize it, the phone's being yanked out of their hand, unlocked and being downloaded as part of the execution of the search warrant.
Whereas if they had an opportunity to talk to counsel, maybe the advice would be, “hey, you need a separate warrant for that device.” They don't need to unlock it necessarily. I think the employer would want to know where they stand with the prosecutor before they make those types of informed decisions or not.
Claire, you mentioned a response team.
Claire Rauscher
OK.
Luke Cass
What does that look like from the company's perspective?
Claire Rauscher
So this, yeah. So, this is part of that, you know, preparation in advance for the search warrant. You know, obviously the person who is the frontline person – it’s usually the receptionist, you know, if it's an office - or it's the plant manager.
So those are the first people. Those are like your first responders to the search warrant. So, you know, these people are key because they're the ones who are going to be approached first. Those are the ones who are going to be given the warrant.
Those are the ones who are going to be notifying either in House Counsel or somebody to get some assistance and direction from.
And so those people are the boots on the ground. But then you know, you hope to have some other people who are knowledgeable and in the know, these are people who are going to watch and take notes about where the agents are going, what they're taking.
They're kind of shadowers. You really can't stand behind the agents and watch them. But you know, you can see what they're doing and that's really important.
You know, maybe whose office they didn't go to. Maybe the ones who did, so you know these are these are the teams that are put together in advance and it really depends on the size of the space. If it's a large organization, you know you may have to have several shadowers, because usually the agents are bringing in 20 to 30 people, so there's a lot of people out there, you know, out doing a lot of work.
And you want to see what they're doing, how they're doing it, and also listen to what they're talking about or what the questions are.
That's really important and you know, we talked about making sure that that's all noted somewhere.
Luke Cass
Tremendously important. That is going to be an early blueprint for the internal investigation that comes later.
Claire, let's talk about what if there is potentially privileged information or even trade secret information that is in one of the file cabinets and they start collecting it?
Anything special companies should or their employees should be trained to do when it comes to that information?
Claire Rauscher
Yeah. First of all, they need to object. Say, listen, hey, there's attorney-client privilege, trade secrets, things like that in this material. And you know, you shouldn’t be taking it, etcetera.
It won't stop them, but you'll put them on notice.
If you're aware, like for example, they're going into counsel's office or general counsel's office, you can immediately alarm them and tell them this is, you know, there's privileged material in here, please segregate that out, you know. And if you can get hold of talk to the agent on the scene, try to talk to prosecutor and say this stuff is there, we want to make sure it's segregated.
The same thing has to do with the IT and the computers you know, hopefully your IT person will be there in with the agents and let them know where either the files are for the legal department or, you know, trying to get that information segmented.
Unfortunately, the agents, if you know if you're lucky, they will segregate it. But you know you have to put them on notice. And the same thing goes with trade secrets. You know, if you know that the materials in there that and, you know, things that they're taking, especially files or whatever note it so that they can try to segregate them in advance and essentially the segregated attorney-client privilege material should then go on to what's called a taint team and they’re totally separate from actually the people involved in the prosecution.
They're the ones who are supposed to look at the material, make decisions about whether the material is privileged or not.
But it's critical that you let them know and object and try to get that information all the way to the prosecutors in the case to ensure that those, that material is protected. It won't stop them from taking it. But you know, it eventually can stop them from looking at it.
Luke Cass
there's a fine line between complying with the execution of the search warrant, which everyone's required to do. You know, that comes from a judge, - there's no other choice but to do that. But consenting to what may be beyond the scope of that, what does that legally do when you, when you start agreeing to things that may be beyond the warrant?
Claire Rauscher
Well, you never want to agree to anything that's beyond the warrant, right?
The key is to is to make sure that the agents are focused on what's in the warrant.
That includes locations. Like, if you know, it says you're only supposed to be in such and such building, and then they head off to another building they're not supposed to be there, you've got to be objecting. Saying, listen, you're not supposed to be there. Call up the prosecutor, say they're not supposed to be there.
If they are there and they do take material, then down the line, obviously you can go to the court, move to suppress that information or get them to bring it back voluntarily.
I've had that happen. I've been able to get them voluntarily to return it, but consent is very important, just like somebody consents to talk to the agents, you consent to allow this stuff to be taken that you know it shouldn't.
It's a waiver, and that means they could keep it and so that you do not want to have happen.
Luke Cass
Absolutely right.
That's why it's also so important to have a plan in place so that outside counsel knows and is able to call the AUSA who often will sign the application part of the search warrant, and there will becontact information there, or the agent will even provide it.
And having that initial discussion about, is the company a target or a subject? Are employees targets or subjects?
And Claire, I don't know if you want to talk a little bit about those are specific terms of art under the Justice Manual
Claire Rauscher
So a target, for example, if the prosecutor says that either an individual and/or the company were target, it means that they already have substantial evidence that a criminal act or criminal acts have been committed by that individual or company.
So it's a much higher standard. It's like you're in a lot of trouble if you're considered a target.
A subject is, I call it kind of an amorphous term. It doesn't mean that you're a target. Doesn't mean that you're a witness. It means you're somewhere in between.
And normally what I see is it means that - and these are not the technical terms, Luke from the manual - it means that you're in no man's land. That they can change that in a minute. You can become a target if they just learn more information about, you know your that you're involved more in criminal activity.
Or you can go back to being a witness, and a witness is someone who's just that, is a witness.
They don't have essentially any kind of criminal liability. They may have information that would assist the investigation, but they're not someone that they're looking to prosecute. Though I will say I've had witnesses who ended up becoming targets because once again they learned later on that they were involved more than they had originally thought.
But you know, A target's not a great thing to be. Subject, you're sort of, you know, in a very strange situation where you hope that nothing happens. And then witness, you should be OK.
Luke Cass
target is what - I think the exact language is they’re a putative defendant - they decided to charge, but you're absolutely right.
The subject is on a sliding scale and the typical response from an assistant US Attorney may be, “Oh, it's too early to really tell who's who, but if I had to guess, you know it may be X or Y. This is what we're thinking at the current point in time.”
But I think the response to that, a defense attorney like Claire would be, will be like say, “well, you want to speak to this employee. I don't think it's unreasonable to identify whether they're a target or subject. I have to make a determination whether they should have their own separate counsel, since I represent the company.”
Right, Claire?
Claire Rauscher
Right, absolutely.
I mean, that's one of the key issues is, who does council represent? Do you represent the company, do you represent individuals? That needs to be clear, because if you're representing the company and you haven't made it clear to the employee, and that's what's called through Upjohn Warnings and the, the employee might think you represent them. And that creates a conflict, but creates all kinds of problems down the line.
So you want to make sure, everybody wants to make sure that that's avoided.
And so, Luke, we're now here. All right, they've taken all the evidence.
You've finished - you've already talked to everybody and you're like, Oh my goodness, what is going on here?
Is it time - should the company start thinking about putting together their own parallel investigation?
Luke Cass
I think you have to.
Any responsible company that's going to be the decision - there is probable cause of evidence of a crime present at that location. You're going to want to know who's responsible for that, how that information got there, what exposure the company has, what exposure employees may have, or those employees, how they may be attributed to the company under a sort of agency theory.
it's really vital to do an investigation and the problem with doing it from when you learn about a search warrant is the clock is running.
So you want to at least run parallel to the government, if not faster. So you can be ahead of the curve a little bit, but that takes a lot of planning and a lot of work.
From the start, first finding out what they took and having your own copy of it that you can image. And interviewing witnesses, getting outside counsel involved and just learning as much as you can as quickly as you can.
Claire Rauscher
So, you know, here we are. They started the investigation. It's off and running.
Let's go back to the very beginning. What do company leaders need to really focus on, and what are sort of our key points from today's discussion.
Luke Cass
the key points are there are things that you can do to mitigate the disruption of a search warrant and prepare for this eventuality. A lot of companies think this is never going to happen to us until they show up with the with the warrant.
Claire and I just did a training involving a former FBI federal agent and companies, which the audience was largely in House counsel, found it incredibly informative just to see a tabletop exercise in motion from when the federal agent first walks into the warrant, how he or she interfaces with reception, the potential responses to questions looping outside counseling.
It'll be less startling and less surprising if employees go through that training.
Little things like asking for the name of the agent, asking for a copy of the warrant.
Whose job is it to? Then get it to in house counsel and then outside counsel. And then what happens next in terms of when they ask for employees.
When they ask for devices, even things like, should we sign the inventory sheet? And perhaps Claire, you can just describe that very briefly.
What that is that comes at the end of the process, right?
Claire Rauscher
Sure. So essentially at the end, they're supposed - they usually hand over a sheet that allegedly inventories everything that they've taken during the search and sometimes they want somebody in charge to sign it.
And our advice always is not to sign it because number one, you have no idea whether everything that they seized is on that sheet of paper.
So we advise every not to sign it, certainly to take it so you can get an idea of what they took, but not to sign it. Because down the road, if there's an issue about, you know, they didn't return something or they took something they shouldn't have taken or whatever you don't want to have somebody say, “Oh well, you said you signed this. You said this is what you got, et cetera."
So you know, no need - they can't force you to sign it and don't sign it.
Luke Cass
Absolutely.
And even little things like I described one variation of a search warrant where they image everything on site. That is not how it's done in every single district. Some districts take the computers, and those computers can be gone for six months a year, maybe later.
So, having a plan for OK, now that they've left, council’s on it, but how do we get back to business is going to be a really important consideration.
Claire Rauscher
Right. And that's why, you know, at the time of the search, it's really important to know who the lead agent is. Establish that connection to find out who the prosecutor is, because things are going to happen. And if they've taken key documents, you want to be able to say, “listen, we need those returned.” Or they've taken a key laptop, “we need to get that back to do our business.” And most the time you get them back if you ask for them with a good reason, but if you don't, then of course you can always go to the court to have them returned.
But once again, it's the ability to know what to do, who to talk to, and how to handle this in advance.
And that's why there needs to be planning and you know, Luke was talking about how we did this tabletop exercise at a presentation, and we had an actual office manager.
And so the office manager came down to meet the FBI agent, he was handed the warrant and he had no idea what to do next.
And it was just such a perfect example of, you know, what happens when you don't know, if you're not ready. I mean, he didn't read it, he was just standing there. He didn't know what to do next, so it's really important to start that training now at all the facilities.
Luke Cass
That's absolutely right.
And even the open lines of communication is such an important point that you made. Claire, a lot of people are under the notion that the prosecutors are not going to tell us anything, they're just going to execute the search warrant and leave. I don't think that's necessarily true.
Back in my time as a prosecutor, if our agents were seizing privileged materials, I'd want to know that right off the bat to put those aside and have somebody else look at them if we looked at them at all, because you want to preserve the integrity of the investigation.
You'd be surprised how much information can be shared by just asking when the when the search warrant's being executed.
Claire Rauscher
Right. And that communication is so important 'cause most people are just scared. They don't want to - they're afraid to talk. But there's some things you just need to do and need to know.
Thank you for listening to Womble Perspectives. If you want to learn more about the topics discussed in this episode, please visit The Show Notes, where you can find links to related resources mentioned today. The Show Notes also have more information about our attorneys who provided today's insights, including ways to reach out to them.
Don't forget to subscribe via your podcast player of choice so that you never miss an episode. Thank you again for listening.