Global Crisis Management Series: This post is part 13 in a series concerning topics further elaborated on in Cleary Gottlieb’s Global Crisis Management Handbook—a desk reference for spotting issues and avoiding common mistakes when faced with a crisis. The current version is available here.
When a company receives a request for information from an investigating authority, one initial issue is whether to cooperate with the request or to assume an adversarial (or at least non-cooperative) position. Even if the company ultimately decides to contest the authority’s characterization of the conduct, it is often in the company’s best interest to agree to cooperate with the investigation and the authority’s requests (to the extent they are reasonable and lawful). In this vein, there are three important ways to establish and maintain a cooperative posture with an investigating authority, while also protecting the company’s interests in the process.
- Be helpful. It is often advisable for a company to approach its response to a request for information and negotiations with the investigating authority as a way of helping the authority understand the issues at hand and identify the documents that were requested that could be most useful. Given that the company is typically more knowledgeable about the issues under investigation, it can position itself as an expert that the investigating authority can learn from. Negotiations with the investigating authority about the scope of the request can serve as an opportunity to highlight that the authority will benefit by leveraging the company’s expertise to hone in on the most relevant information and arrive at answers to its questions most efficiently. Particularly in the early, fact-finding stages of an investigation, a company can potentially use witness interviews and presentations to the investigating authority as effective means of educating the authority about, for example, relevant industry custom and practice.
- Be proactive. There are a number of proactive steps a party in receipt of an investigative request can take to help the investigation proceed efficiently. With respect to requests for documents, the company can propose search terms and custodians and offer to conduct a limited internal investigation short of a full-blown review to determine whether there may be additional ways to narrow the scope of the initial request. In seeking to narrow a request, it is critical to ensure the government understands that the company is not simply seeking to avoid unnecessary burden and cost, but also to increase the efficiency of the investigation. If the requested materials cannot be produced quickly, for example due to the volume of the data or jurisdictional restrictions on the production, the company can propose a schedule for providing partial responses on a rolling basis. To the extent possible, such productions should be organized in a logical manner (e.g., by date, topic, or custodian), and with input from the requesting authority. After an initial conversation with the authority, the company can follow up by scheduling regular “check-in” calls to discuss productions and the progress of the review or investigation to keep lines of communication open. This helps to get a sense of the authority’s view of the company’s assistance in real time, rather than receiving after-the-fact notification that the authority is dissatisfied or that productions have been off-base or insufficient.
- Be honest. A company’s credibility and its rapport with the investigative authority are critical to maintaining a smooth investigative process. As such, it is almost always better to openly and transparently discuss challenges the company is facing in meeting the authority’s requests rather than overpromising and then needing to seek more time or alter the investigative plan at the last minute. This includes correcting any production or factual errors as soon as they are discovered, and raising other potential obstacles in real time. Establishing and maintaining an honest dialogue will often pave the way for greater flexibility and understanding both when it is necessary to revise a schedule and later on, when seeking to resolve the investigation.