Government Investigation Response Flashcards

What is 'spoliation of evidence' and what are its potential consequences in a government investigation?

Answer: The intentional or negligent destruction of relevant evidence, potentially resulting in adverse inference instructions or sanctions

Spoliation—destroying or altering relevant evidence—can result in court-imposed sanctions including adverse inference instructions, striking of defenses, or even default judgment.

Which of the following best describes the 'cooperation credit' framework under the USAM (United States Attorneys' Manual)?

Answer: A discretionary credit rewarding companies that assist the government by disclosing facts and identifying responsible individuals

Cooperation credit under the USAM is discretionary and depends on the quality and timeliness of the company's assistance, including disclosure of facts about culpable individuals.

When government investigators seek to interview a company's employees, what should compliance counsel advise regarding individual employee rights?

Answer: Employees should be informed they may retain personal counsel and have the right to decline voluntary interviews

Employees have the right to retain personal counsel and are not legally required to submit to voluntary government interviews, and compliance counsel should inform them of these rights.

What is the purpose of a 'privilege log' in responding to a government subpoena?

Answer: A log identifying documents withheld from production and the specific privilege claimed for each

A privilege log must identify each withheld document by description, date, author, and recipient, and state the privilege claimed, allowing the government to challenge specific assertions.

Under the Foreign Corrupt Practices Act (FCPA), what constitutes a 'government official' for purposes of the anti-bribery provisions?

Answer: Any officer or employee of a foreign government or public international organization, or any person acting in an official capacity

The FCPA's definition of 'foreign official' is broad, encompassing any officer or employee of a foreign government at any level, state-owned enterprises, or public international organizations.

What is the primary risk to a company when it selectively produces documents during a government investigation?

Answer: The government may argue the company waived privilege over all documents in the same subject matter

Selective production can trigger subject matter waiver, where a court finds that disclosing some privileged documents on a topic waives privilege over all documents on that subject.

What does it mean for a company to 'toll' the statute of limitations during a government investigation negotiation?

Answer: The company agrees to temporarily suspend the running of the statute of limitations while negotiations with the government are ongoing

Tolling agreements allow both parties to pause the limitations clock during negotiations, giving the government time to complete its investigation without rushing to file charges prematurely.