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

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 distributed both in hard copy and through the company's internal e-mail system. The plan should designate an information services manager who can coordinate firm-wide electronic distribution of the prepared memorandum as soon as the agents attempt to execute the warrant.

Fourth, the plan should include written instructions for security and reception personnel on the proper response to a government agent's demand to enter the facility. These personnel should have a copy of the written instructions, which are discussed in Step Three below, in their desks or computer terminals, in an easily accessible format.

Fifth, the plan should include the telephone numbers of state and federal prosecutors' offices, the numbers of Clerk's Offices for state and federal courts, and/or the numbers of the state and federal judges in your judicial district who authorize search warrants. (Often, some of this information is also included in the warrant itself.) These numbers may prove useful in your efforts to obtain a stay of execution of the warrant (see Step Five below).

Step Two: Test the Plan

Every company conducts fire drills. Every company should also conduct "search warrant" drills to determine whether the written protocol translates well into reality. (Before conducting such a drill, it may be advisable to inform your personnel that the company is conducting a mock search warrant drill merely as a precautionary measure, and that the company has no reason to believe that any government agency has cause to apply for a warrant.) Outside counsel should be involved in formulating the mock search and response efforts, not only for their critical views but to determine whether your outside counsel is prepared to respond properly. After each mock search, a committee of in-house and outside counsel should critique the company's response by analyzing the videotape (as discussed below, an actual search should be videotaped if possible; the mock search, if your company's warrant protocol is followed, should also result in a video memorialization) and modify the protocol accordingly.

Step Three: Create a First Line of Defense and Regain Control

The agents appear at the front desk, show the receptionist or security guard a warrant, and demand to be admitted to the premises. If not properly instructed, these "front line" personnel may feel intimidated and apt to admit the agents without taking critical defensive measures to limit the agents' otherwise unrestricted access to your facility and your employees. If the agents gain unrestricted access to the premises before counsel can be notified and proper responsive measures taken, your company has effectively lost control of the search, with potentially damaging consequences.

All "front line" personnel should be trained in advance on how to respond to a government search request. Reception and security personnel should be polite and courteous to the agents, but firm in asking them to wait while the company's legal department is contacted. (In no event, however, should any personnel ever obstruct or impede, physically or otherwise, the person or persons serving the warrant; it would be difficult to conceive of a more literal "obstruction" of justice case.) The receptionist or security guard should then contact in-house counsel and the designated lead point person immediately. The designated lead point person should arrange to distribute the company-wide response memorandum and proceed immediately to the reception area where the agents are (hopefully) still waiting. The designated lead point person should also contact the company's public relations department to alert them to the existence of the warrant and to formulate a response to any press inquiries that may arise.

At the same time, in-house counsel should contact outside counsel. The in-house lawyer should be equipped with a cellular telephone so that he or she can be in constant, meaningful contact with one lawyer from outside counsel during the search. Ideally, another lawyer or lawyers from the company's outside firm should be present at the company's facilities to assist in coordinating the response to the warrant. The in-house lawyer should also proceed to meet the agents.

Step Four: Review and Formulate Objections to the Warrant

Most government search teams have a designated lead agent. The designated point person (or inhouse counsel, if in-house counsel arrives quickly enough) should locate that agent (usually the one serving the warrant) and take these initial steps:

* Ask the agent for his name, government identification, and business card. Record this information. Then ask for the names and government affiliations of the entire search team and record this information. Write the time and date on this sheet of paper and ask the lead agent to sign it. It is important when you do this to try to establish as cordial a working relationship as possible under the circumstances.

* Ask for the warrant and accompanying affidavits, if available. Under the Federal Rules of Criminal Procedure, the agent or agents conducting the search are required to produce a copy of the warrant upon demand. (Most states have similar requirements.) Demand to see the warrant, and if the agents refuse to produce a copy, inform them politely that they are in violation of the Federal Rules of Criminal Procedure (or similar state law requirements). An affidavit is normally also available, unless the case is filed under seal. If the affidavit is not under seal and the agents do not have a copy, call the appropriate Clerk's Office to obtain one. Review both documents carefully and write down the documents the agents are authorized by the warrant to seize and the places they are authorized to search.

* Ask to have time for both in-house and outside counsel to review the warrant and affidavit. If the agents refuse to allow you to do this, inform them firmly but politely of your belief that such refusal infringes your Sixth Amendment right to counsel. Meanwhile, arrange to have copies of the warrant and affidavit faxed to outside counsel or read to him or her over the telephone.

By this time, in-house counsel should have arrived on-site, and will be in contact by phone with outside counsel. After both inhouse and outside counsel have carefully reviewed the warrant and accompanying documents, they should formulate and articulate the company's objections to the warrant, Some defects in the warrant may be obvious from the face of the document - for example, if the warrant authorizes a search of the incorrect premises. Others may not be so obvious. A search warrant may not be valid if it is overbroad, and may be declared invalid if not sufficiently limited as to time, location, and relationship to a specific suspected criminal activity.

Because courts are more likely to approve an overbroad search after the fact on either a "good faith" or "consent" theory, ideally these matters, as discussed below in Step Five, should be judicially addressed before the agents begin to execute the warrant. Nevertheless, it is helpful to inform the agents and create a record of any objections your company has to the form, scope and content of the warrant in order to limit recourse to any good-faith or consent exceptions to the exclusionary rule.

Step Five: Stay Execution of the Warrant

Your immediate goal should be to obtain a stay and a judicial hearing regarding the propriety and scope of the warrant before the agents begin searching the facility. Conducting a hearing before the search will eliminate (or greatly reduce) the likelihood of successful resort to good-faith and consent exceptions to exclusionary rules, may result in beneficial modifications to the scope of the warrant, and, in any event, will give you a chance to coordinate teams of employees to monitor and record the search. A hearing, furthermore, may force the government to reveal its hand to some extent and thereby provide insight into the government's investigation.

Either in-house or outside counsel should begin by asking the lead agent to forego executing the warrant until the lawyer has had a chance to contact the Assistant U. S. Attorney (or state equivalent) prosecuting the case. Ask the lead agent for the prosecutor's name and telephone number (or look on the warrant). If these sources fail, call the number of the U.S. Attorney's Office, which should be listed in the company's protocol, or the equivalent state office and ask for the prosecutor in charge of the case.

If the agent or agents conducting the search insist on continuing without affording counsel the opportunity to consult with the prosecutor, inform the agents that you object to the use of a search warrant to obtain documents; that the company is willing to cooperate fully with the government by producing any documents it requests by way of subpoena; that you represent as an officer of the court that no documents will be destroyed by the company in the meantime; and that if the search proceeds without affording the company an opportunity to consult with government counsel, you believe the company's constitutional rights will be violated. If the proposed search includes lawyers' files, you should also state that the search would violate the company's Fifth and Sixth Amendment rights and Department of Justice Guidelines, which require approval from the appropriate Deputy Assistant Attorney General before an attorney's offices may be searched.

Furthermore, if the warrant is defective in some way - for example, by failing to set forth with adequate specificity the areas to be searched and the items to be seized - this should be mentioned. Finally, attempt to obtain the agents' agreement not to interview your employees or at least to wait until counsel is present before conducting any interviews. If the agents refuse that request, state your belief that both the company's and the employees' Sixth Amendment rights would be violated by any interview conducted without counsel present.

If you are able to get in touch with the appropriate prosecuting attorney, ask him or her to stay execution of the warrant until after a judicial hearing. State the reasons listed above as the basis for your request, and emphasize that the company will not destroy any documents in the meantime. (Indeed, since one of the government's primary motives in proceeding by warrant rather than by subpoena was to prevent the company from destroying any responsive documents, this representation may prove important in your negotiations with the prosecutor.)

If the prosecutor is unwilling to accommodate your request, seek an emergency hearing over the telephone before the issuing judge for an order immediately stopping the search until a formal hearing can be held. Make the same arguments mentioned above, emphasize the irreparable harm that will result if privileged material is seized, and state that while the company is fully willing to cooperate if the court approves the warrant, you would like the judge to consider both the necessity for and the scope of the warrant. If this fails, argue for at least a temporary stay so that the company can supervise the search to ensure that the agents stay within the scope of the warrant and do not seize privileged materials.

Finally, if your efforts with the magistrate judge are unavailing, be prepared to seek an immediate stay from a district judge, raising the same arguments outlined above. If this fails as well, proceed to Step Six.

Step Six: Monitor the Search

Once the agents begin their search, monitor them closely. Ideally, there should be one company employee for every government agent, and one video cameraman recording each discrete aspect of the search. If video cameramen are unavailable, or if the agents refuse to allow you to video-record the search, make as complete a written record as possible of what the agents do and say under the circumstances.

Search warrants authorize agents to search and seize only the types of items listed in the warrant and only in the places identified in the warrant. The employees monitoring the agents therefore must be debriefed as fully as possible as to these aspects of the warrant. If the agents exceed the scope of the warrant or attempt to seize privileged material, the employee monitoring the agent should state the objection and ask the agent to stop this aspect of the search.

Under no circumstances should any employee ever consent, either explicitly or implicitly, to a government agent's attempt to search places or seize items beyond the scope of the warrant. If the agent(s) refuse to stop, the employee monitors should contact counsel immediately. Counsel should then call the prosecutor (or if the prosecutor is unhelpful, the magistrate or district judge) and attempt to get either the government's consent or a judicial order halting the objectionable aspects of the search.

During the search, the employee monitors should be prepared to take a detailed inventory of all documents seized, from whom, where and at what time they were seized, and the identity of the agent who seized them. Compiling a complete inventory can be helpful for several reasons:

* While the government agents are required under the Federal Rules of Criminal Procedure to take inventory of what they have seized and to provide a receipt for the property taken, this list is often stated in terms too undefined and generalized to be useful in reconstructing what has been seized.

* Knowing what documents the government has seized offers a window into the government's case.

* Taking inventory will assist in the debriefing session that follows the search (see Step Eight) by identifying the employees who had relevant documents and who therefore should feature prominently on the list of people to interview after the dust settles.

Ask the agents to make copies of any documents, computer files, or tangible items of evidence that are seized. (If the agents seize items that are not capable of being copied, such as soil or water samples, ask for half of the sample taken). If the agents are reluctant to allow you to do so, explain that these are the company's working files necessary for the ongoing business operations and legal representation of the company. Also, explain that the Federal Rules of Criminal Procedure (or their state counterpart in most instances) require the government to make an inventory of materials seized, and that the only accurate means of doing so is to make a duplicate copy of the materials the agents are taking.

Step Seven: Debrief 

There are several important "post-mortem" steps that must be taken immediately after the agents have completed their search.

First, every employee involved in the company's response should memorialize their observations and inventory lists in a memorandum to the company's counsel. Make sure the memoranda are prominently labeled "Attorney-Client Privileged And Confidential Communication." In order to maintain the attorney-client privilege, instruct all such employees not to discuss the search or the company's response with anyone other than company counsel.

Second, circulate a "document retention" memorandum to all employees instructing them not to discard, destroy, or alter any documents or tangible items until further notified.

Third, compile a list of every employee who will need to be interviewed as part of the company's internal investigation. This list should include every employee whose offices or work stations were searched in order to confirm the inventory of items seized, and any employee who might have information or documents pertinent to the government's investigation. These employees should be contacted as soon as possible, because interviewing them is certainly high on the government's "To Do" list. For obvious reasons, you will want to debrief these employees before the government attempts to interview them. If there is the possibility of conflicting interests between the company and certain employees, consideration should be given as to whether to hire outside counsel to represent the employees separately.

Fourth, contact the prosecutor and try to arrange for the return of seized items as quickly as possible, explaining that the materials are necessary for the company's ongoing business operations. If this fails, consider filing a motion under Rule 41(e) of the Federal Rules of Criminal Procedure for the return of the seized items.

Fifth, consult with your public relations department to coordinate an appropriate response to the press and shareholder inquiries that are likely to follow closely on the heels of the government's search. (Indeed, Columbia Healthcare's shareholders took a decidedly dim view of the news that the government had executed a warrant; the day after the search was announced, the price of shares dropped 5% in heavy trading.)

A criminal investigation of your company is a serious and disrupting matter. Following these seven steps, however, can minimize the disruption to your company and maximize the chances of a favorable outcome at the conclusion of the government's investigation.

Bruce E. Yennett is a partner in the New York office of Debevoise & Plimpton, where his practice focuses on white-collar criminal defense and internal investigations. The author gratefully acknowledges the assistance of Michael R. Portenza in the preparation of this article.