Dealing with a government investigation is likely one of the biggest concerns for any large enterprise. But for government attorneys, it can be equally frustrating if opposing counsel aren't well prepared or informed about the matter at hand. At Legalweek 2019's "The Government Reference Model" session, two government attorneys dispensed advice counsel should follow when dealing with investigations.

Be Prepared

"The first rule is always going to be, be prepared,"  said Allison Stanton, director of e-discovery at the Office of the Assistant Attorney General at the U.S. Department of Justice. Many, she said, "come in or send in the senior partner and they are going to wow us about their knowledge about a particular topic, but they don't know the facts of the case."

Being prepared, however, is more than just being well-versed in the matter being investigated. Glenn Melcher, special counsel for e-discovery at the Consumer Financial Protection Bureau, said it's also pivotal to place legal holds on pertinent information and understand all custodians that have access to the data in question. "If you come to the meet-and-confer [conference] and can't tell me who the key players are, you're not prepared."

He added, "It's best to come to the meeting with someone who knows your data and knows your organization."

Still, Stanton cautioned that knowing where pertinent data resides doesn't just mean running search terms over databases or relying solely on technology. "We need to get back to the sleuthing part, the detective work, because as a prosecutor or as a litigator, one of the first questions [we ask] in a witness interview is, 'Do you have data or information on X?'"

Enable and Listen to Your Whistleblowers

There are many sources that can trigger a government investigation, including consumer complaints, referrals from state AGs, or even public news reports. Mitigating the risks from these sources usually requires a company to be aware and address of any potentially legal liability problems within its own offices before they evolve into larger problems.

For Stanton, this means enabling whistleblowers, who she noted were the cause of many civil FTC investigations. "One of the things proactively you can do before we knock on the door is …make sure we are addressing potential issues, because whistleblowers are a big [source]."

And even if a company is able to keep a potentially illicit situation or practice from being disclosed by whistleblowers or made public, government investigators may still be able to sense that something is wrong. Melcher, for instance, noted the CFPB does its own market research to see where there are anomalies with certain financial transactions or companies.

Remember: It's a Small World

Attorneys who are difficult to work with or have strained relationships with government investigators will be well remembered by federal lawyers across D.C. "We are usually not only very aware of organizations, but also very aware of in-house personalities and sometimes external counsel," Stanton said.

She added that an attorney's reputation is their most important capital they have, "so it should not be squandered because it will travel among circles."

Melcher said for any investigation at the CFPB, attorneys start by asking others in the agency if they have dealt with a particular company or in-house counsel before. They will then go ask their colleagues across other agencies in the federal government to get insight on a particular attorney. At the end of the day, it's likely that someone will have some insight.

"It is still a small community, even though you work in different places," Stanton said.