Procedures in the Event of Government Authorized Searches or Raids
Introduction. In this era of enforced compliance where the Governmentís response to perceived violations of various laws (environmental, documented workers, work safety issues, taxation and claims of fraudulent practices (particularly related to claimed insurance or medicare fraud)) is met with a raid in which records are seized rather then a "normal" investigation where records are requested, normal businesses must be prepared to deal with such a possibility. While there is not a great deal that can be done to deal with a raid while it is occurring, there are still important steps that can and should be taken.
I. Ask for Identification and a copy of the Warrant.
A. Should state or federal authorities enter your facility with a search warrant, first ask for the following information:
- Ask to see identification (note in your file who is heading up the raid/search).
- Ask for a copy of the warrant authorizing the search or raid and any accompanying affidavit.
- Contact your attorney (your accounting department should have the number of your attorney). In a raid they will not stop, for a warrant for records, you can ask them to wait for the attorney to arrive, but they do not have to. In a search for records you still should ask them to wait for an attorney response.
- Request that they comply with all bio-security requirements. Do not obstruct them if they will not but do note whom you spoke to about the request.
B. Immediately fax a copy of the warrant and any affidavit to the attorney.
II. Dismiss Non-Essential Employees.
In the event of a raid, unless the business nature is such that certain work must be completed that day, employees should be dismissed for the day (or they can leave as soon as critical work can be completed in the facility). Office workers can and should leave as soon as permitted. In the event of a search of records, non-essential employees should leave as soon as permitted. The agents may require employees to remain on the premises for a limited time to ensure the safety of the agents, but in a non-raid situation they can not require the employees to stay.
III. Do Not Consent.
Donít consent to a search or a raid. The agents may ask you to consent to a search or a raid and to sign a form acknowledging your consent. Donít do it. This could jeopardize the ability of the attorneys to challenge the legality of the search at a later time. On the other hand, you should not interfere with the Agentsí review of documents or of detaining employees. NO EMPLOYEE SHOULD OBSTRUCT A SEARCH OR RAID IN ANY WAY.
IV. Read Warrant.
Read the Warrant. The Warrant will describe, often in detail, the areas of the facility which the agents have been authorized to search (in a raid it will normally be all of the facilities) and if to obtain records it normally will be limited as to specified items. Where the Agents are limited as to where they can search, give them access to such areas so they can see what they wish to see. If they want to inspect an area of the facility NOT covered by the Warrant, you cannot prevent them from doing so, and you should not argue with them about the scope of the Warrant. However, state to the agent that in your view the documents or areas are not covered by the Warrant, and that you are permitting them to search under protest. If the search exceeds the scope of the Warrant, the attorneys for the company may later challenge the legality of the search.
V. Answer Questions Re Search.
You have no obligation to assist the agents in conducting the search or raid. Should the agents inquire about location of documents and ask where certain documents are located, answer their questions truthfully, but again, donít sign any "consent" and donít state that you are "agreeing" to voluntarily provide anything. It is one thing to unlock a file cabinet upon request, but you should not take the agents on a tour of the facility, explain the operations, or the documents they have been authorized to seize (if any). It is their obligation to specify the documents sought, and it is your obligation not to obstruct their access to such documents. Simply provide them with the documents or objects they demand.
VI. Privileged Documents.
Should the agents wish to see "privileged documents"-documents going to and from attorneys-tell them those documents are privileged and ask them to wait until our attorneys arrive to speak with them about this issue.
VII. Monitor Search.
Monitor the search or raid but do remain where instructed by the agents. Make a detailed list of the any documents removed and ask to copy any documents they may remove. You do not have the right to stop the search; however, you have the right to observe the search at all times and make a record of everything they do and every location searched (again, if you are restricted by the agents as to where you are to stay, comply with that request). In a search, request that an employee accompany the agent at all times.
VIII. Employee Interviews.
All employees should be advised that during a search the agents may try to ask them questions regarding not only to the documents that are seized but also their and other employees duties and responsibilities within the facility. Employees should be advised that they are not required to speak with the agents and that the company will provide them with counsel if they wish. Have copies of "Advise to Employees Re Government Interviews" available for distribution as needed.
IX. Obtain Inventory of Records Seized.
At the conclusion of the search, the agents are obligated to provide you with an inventory of all documents seized. Such an inventory should be immediately faxed to our attorneys. Again, however, you should also take notes yourself during the search, and provide that inventory to counsel. In a raid ask for a list of names of individuals taken and where the location to which they will be taken.
X. Media Inquires.
Be prepared for possible media coverage. Before speaking with the media, please consult with your counsel.