Corporations and individuals cooperating in government investigations must be sharply focused on finding out the essential facts of the historical conduct at issue—what happened and why it happened. This is not new. For its part, the government is also sharply focused on what happened and why. In the last few years, however, the interest of the U.S. Department of Justice, in particular, has expanded beyond just the what and why and it is now significantly involved in how companies actually conduct internal investigations. DOJ's involvement often takes the form of a “request” that the company take action or refrain from doing so, rather than a more forceful directive. But the message is no less clear—comply with our requests or risk losing cooperation credit. The most notable types of such “requests” can be grouped into the following categories: deconfliction requests; questions about fees; and restrictions related to document dissemination and communication among counsel (which has implications for joint defense and common interest communications).

The government's increased involvement affects the process of the investigation and can potentially affect the outcome as well. As the new conservative administration transitions into full swing, it remains to be seen whether this trend will continue. In the meantime, counsel representing companies and individuals will need to carefully consider how investigations are conducted to avoid missteps that could cause harm to their clients.

The lead-up to the current environment could be traced to public statements made by officials in DOJ's Criminal Division. For example, in 2015, then-Assistant Attorney General Leslie Caldwell made a series of comments indicating the DOJ's intent to “pressure test”¹ a company's internal investigation. Caldwell stated that “we will consider the adequacy of an internal investigation when we evaluate a company's claim of cooperation² … we evaluate the quality of the company's internal investigation³ … [c]orporate accountability through a strong, tailored compliance program and thorough internal investigations should be the standard for your companies.”⁴ Although Caldwell was quick to note that the Criminal Division would “not tell a company how it should conduct an investigation,”⁵ two years later, DOJ appears to be more focused than ever on how a company and its outside counsel conduct an investigation, and has taken specific steps to involve itself directly in that process. Further, with the release of the Yates Memo in Fall 2015, DOJ has expressly increased its emphasis on individual prosecution, both civil and criminal, and that pronouncement has directly affected how internal investigations are carried out.