Since the outbreak of COVID-19, many U.S. agencies have stated that current investigations will proceed, and the government will commence new inquiries. Indeed, this is not a time for companies to let down their guard. Because most companies are operating remotely, they should be prepared, as the government is, to leverage technology as a substitute for typical in-person investigation-related activities. While technology makes remote investigations manageable, there are key flexibility and best-practice considerations to assist companies in preserving investigative integrity, confidentiality, and independence throughout the crisis.

Investigative Agency Responses to COVID-19

The COVID-19 pandemic has had a unique impact on U.S. agencies. The Federal Bureau of Investigation (FBI), while operating primarily within a remote platform, is functioning more or less normally. Others are de-prioritizing investigations unrelated to the current health crisis, as employees and resources are redirected at an unprecedented level. Further, agencies led by more explicitly political actors, such as state attorney general offices, are likely to shift their near term focus to matters related to COVID-19. The same is true for agencies that include healthcare issues as part of their regular investigative portfolio.

The U.S. Department of Justice (DOJ) recently asked Congress for certain temporary emergency powers during the pandemic, including the ability to delay court proceedings, toll statutes of limitations, and expand the use of videoconferencing. The full extent to which Congress is receptive to such requests remains to be seen, but this highlights the realities facing many agencies. The DOJ is also prioritizing misconduct allegations related to COVID-19, including fraud, price gouging and hoarding of critical supplies.

The Securities and Exchange Commission (SEC) has extended various filing deadlines, but is encouraging companies to be proactive and consider the need for COVID-19-related disclosures within the context of federal securities laws and the SEC's principles-based disclosure system. The SEC emphasized that it is only with exposure to such disclosures that investors can make informed decisions. The SEC also reminded corporations of the importance of refraining from trading on the basis of material, nonpublic information.

The Federal Trade Commission's (FTC) Bureau of Competition also announced that it is conducting a matter-by-matter review of its investigations and litigation to consider modifications of statutory or agreed timing. The FTC advised that its investigators will be reaching out to parties to discuss any adjustments and encouraged parties to proactively communicate with FTC staff on these issues. The FTC is also likely to prioritize matters involving deceit and fraud related to the COVID-19 pandemic.

The Financial Crimes Enforcement Network (FinCEN) has requested that financial institutions impacted by COVID-19 contact it "as soon as practicable" with any concerns about their ability to timely file requisite Bank Secrecy Act (BSA) reports. Financial institutions are encouraged to keep FinCEN and their functional regulators informed as circumstances change. FinCEN is actively monitoring potential illicit activities connected to COVID-19, including imposter scams, investment scams, product scams and insider trading.

The Consumer Financial Protection Bureau (CFPB) has likewise advised that it will work with affected financial institutions in scheduling examinations and other supervisory activities to minimize disruption and burden. As the COVID-19 situation develops, additional agencies will likely announce modifications.

Strategies for Conducting Remote Investigations

• Document Collection and Review

Document collection efforts have been noticeably impacted by the COVID-19 pandemic. While most electronic data can be collected remotely, it may be necessary to retrieve physical documents. Companies must be aware of government travel restrictions and related directives before engaging in a physical collection. To the extent a physical collection can (or must) occur, standard best-practice principles apply, with additional considerations. Indeed, because many employees are working remotely and others have been released, custodians may not be readily available to answer questions during the collection process. It is vital for companies to conduct custodian interviews as soon as an investigation commences to determine where custodians store and how they maintain documents. Obtain passwords at the outset and communicate regularly with the information technology department to get directory maps for electronic databases.

• Interviews

Remote investigations during COVID-19 may require that interviews be conducted telephonically or by video. Both the witness and interviewer may be tempted to record such interviews. Recording a conversation without the knowledge or consent of other parties can have serious consequences, potentially resulting in civil or criminal penalties. Companies should thus carefully consider whether recording is advisable and be aware of relevant state and federal requirements, including wiretap laws. Also, while written notes of interviews are typically considered attorney work product and generally not discoverable in future litigation, interview recordings may not be afforded the same protection. Moreover, the increased use of group video platforms has highlighted vulnerabilities as hackers have compromised meetings. Incorporate all possible security measures, including password protections and tested encryption.

• Reporting

Companies conducting internal or government-initiated investigations may need to report findings (to their boards or a government investigative body, for example) via telephone or video conference. As with witness interviews and other key investigation steps, all attendees should be reminded of the importance of privilege, work product, and confidentiality, as appropriate, and be provided with instructions about taking notes or disclosing findings to outside individuals. Any reports or materials shown or disseminated to attendees should be conspicuously branded as "privileged and confidential," as necessary.

• Investigation Resolution

The economic effects of COVID-19 have also impacted investigation settlement negotiations. Companies may struggle (even more so than normal) with whether to disclose potential wrongdoing to the government when their financial health is increasingly uncertain. An entity concerned about its ability to pay a potential fine or penalty should proactively raise the issue with authorities so the government has all operative facts relating to the company's current financial condition. This will help both parties formulate a fair resolution.

Best Practices for Conducting Investigations in the Throes of COVID-19

While the COVID-19 pandemic has impacted the conduct of both internal corporate and government-initiated investigations, these matters will continue to move forward, albeit in a modified format, with an enhanced use of modern technology and, in some cases, relaxed timelines. Companies facing the daunting prospect of a current or future investigation in the midst of the pandemic are therefore encouraged to hew closely to the best practices discussed here in order to protect the efficiency, effectiveness, independence and integrity of the investigation.

• Develop, maintain, and regularly update your internal investigation policy and associated procedures. Your investigation policy should set clear protocols for conducting investigations and account for unforeseen circumstances, such as a national emergency.
• Craft a thoughtful and comprehensive investigation plan at the outset of the inquiry. The plan should include a tailored scope, realistic timelines, and due consideration of the current crisis.
• Maintain attorney-client privilege and work product protections by employing the secure and encrypted technology necessary to carry out investigative steps.
• Contemplate availability of resources to customize an investigation, particularly as those resources may be depleted during COVID-19. As the DOJ has said, it is not productive to "look under every rock and pebble" or "aimlessly boil the ocean."
• Conduct document collection and interviews in a manner that integrates the added protections needed during a pandemic, including consideration of travel restrictions and adherence to security and legal requirements for virtual interactions.
• In a government investigation, maintain consistent communication with investigators and/or regulators, particularly in the midst of COVID-19, as this helps demonstrate cooperation—and may pay dividends during negotiations.
• Similarly—and particularly as settlement discussions appear more likely—proactively alert investigators of developments related to COVID-19 that will impede or hinder the company's ability to meet deadlines or possible financial obligations.
• Likewise, for any type of corporate investigation, update internal leadership and the board regularly, highlighting how the outcome may affect company resources and finances as the pandemic unfolds and, ultimately, resolves—prepare stakeholders.
• Do not assume that, due to the pandemic, you can put "pencils down" with respect to an internal or government investigation and focus solely on other concerns. The government expects functioning entities to continue to investigate possible illegalities, irrespective of COVID-19—albeit with potentially-relaxed timelines.
• Consider involving outside counsel in the process. These are difficult times and investigations, even without the burden of a pandemic, are extremely demanding.

John Cunningham and Jason Parish are shareholders and Martin Amundson is an associate, in the litigation section of Buchanan Ingersoll & Rooney. Cunningham, a former senior trial attorney with the DOJ and investigative analyst for the FBI, concentrates his practice on internal investigations, corporate compliance, and white collar defense. Parish focuses on complex litigation and government investigations and is the co-head of the firm's Buchanan's life sciences group. Amundson's practice is focused on complex commercial litigation.