7 Ways to Build Credibility During Government FCPA Investigations

Good communication is key to any relationship—particularly when that relationship is with the U.S. government, and they’re inquiring about a possible violation by your company of the Foreign Corrupt Practices Act. How corporate counsel respond to the government’s electronic discovery requests can determine whether or not that relationship stays on track.

What could go wrong? Plenty, says Avi Gesser, counsel to the chief of the fraud section in the criminal division at the U.S. Department of Justice. “There is a lot of potential for mutual benefit,” he says, “and a lot of room for misunderstanding.”

Gesser addressed attendees at an event hosted by legal-technology company UBIC North America this week in New York City. He was not speaking on behalf of the Justice Department, nor iterating department policy, he said, though the former Davis Polk & Wardwell partner did offer pointers based on observations he has “collected over time.”

Most importantly, when facing an FCPA inquiry, “it’s a very good idea to engage the government early,” Gesser says. “You can create a set of expectations that both sides understand . . . in a way that will be very beneficial to you in the course of an investigation.”

For starters, those initial conversations can help companies determine just how much information investigators want to see. Otherwise, “you may find yourself over-collecting, you may find yourself under-collecting,” Gesser says.

In a rapidly expanding universe of available data, the scope of e-discovery requests has changed dramatically. Five or six years ago, counsel had but to consider employee emails, user files on employee computers, and company backup tapes in response to a government request.

Nowadays, such a request “could include anything,” Gesser says. And “anything” ranges from hard drives on a photocopier and JPG images stored on employee phones to web-browser caches showing employees’ social media interactions.

Which is why establishing parameters with investigators will help keep an investigation running smoothly. “The government doesn’t want millions of pages of documents that are irrelevant,” Gesser says.

But the government does want to keep its options open. Since material that’s relevant to electronic discovery can quickly disappear, Gesser reiterates the importance of finding out sooner—rather than later—if the government might want to see it down the road.

Gesser also stresses that senior-level attorneys, whether in-house or outside counsel, understand and be involved in the e-discovery process. These requests are complicated and require judgment from experienced counsel, says Gesser—so don’t leave it to junior associates to handle just because they’re the ones who understand the technology. Or else, “you run the risk that they’ll miss something,” he says.

Of course, misunderstandings can happen in any complex legal investigation. But, according to Gesser, misunderstandings can also make it hard for the government to distinguish between a company trying to do everything right and a company that isn’t quite trying to do everything right.

That said, below are seven tips from Gesser for building credibility with the government and keeping the relationship on solid ground.

1. Be Creative

If government attorneys say they want emails from a company consultant, don’t just give up and say you can’t get them because the consultant isn’t an employee. For example, you could go through the email accounts of employees who correspond with that consultant in order to build a useful record.

2. Identify What You’re Producing