Essential Steps to Take Today If Your Company Faces a Federal Investigation

Step One: Activate a Document Preservation and Litigation Hold Protocol Immediately

In my 25 years as a federal prosecutor, I saw countless companies compound their legal exposure not by the underlying conduct, but by failing to preserve evidence once they knew an investigation was underway. Under 18 U.S.C. § 1519, it is a federal crime to knowingly alter, destroy, mutilate, conceal, cover up, falsify, or make a false entry in any record with the intent to impede an investigation. The moment your company receives a subpoena, a civil investigative demand, or even an informal inquiry from a federal agency, you must issue a written litigation hold to all employees, IT personnel, and third-party vendors. This hold must cover all electronic data, including emails, instant messages, Slack communications, financial spreadsheets, and voicemails stored on company servers or personal devices used for business. I recommend working with your IT department to suspend any automatic deletion or rotation policies for backup tapes and cloud storage systems. Failure to act within hours, not days, can lead to obstruction charges that carry far steeper penalties than the underlying offense under the United States Sentencing Guidelines, Section 2J1.2.

Step Two: Engage Federal Criminal Defense Counsel Before Any Government Contact

One of the most critical mistakes corporate executives make is believing they can handle initial government outreach internally or through general corporate counsel. Federal investigations are fundamentally different from civil regulatory matters because they involve potential criminal liability for individuals, including executives, under statutes like the False Claims Act (31 U.S.C. § 3729) and the Foreign Corrupt Practices Act (15 U.S.C. § 78dd-1). As a former federal prosecutor, I can tell you that agents are trained to elicit damaging admissions during what they call "voluntary interviews," and anything said can be used directly against the company and its officers. You need a lawyer who has tried federal criminal cases, understands the Federal Rules of Criminal Procedure, particularly Rule 16 governing discovery, and knows how to negotiate with the United States Attorney’s Office. Do not accept a "proffer agreement" or "queen for a day" letter without experienced counsel reviewing its terms, as these agreements can waive Fifth Amendment protections under Kastigar v. United States, 406 U.S. 441 (1972). I have seen too many well-intentioned in-house lawyers inadvertently waive the attorney-client privilege by sharing preliminary findings with agents without a proper joint defense agreement in place.

Step Three: Conduct a Privileged Internal Investigation to Map Exposure

Once counsel is retained, the next essential step is to launch a thorough internal investigation under the protection of the attorney-client privilege and the work-product doctrine, as codified in Federal Rule of Evidence 502. This investigation must be directed by legal counsel, not by business executives or compliance officers, to ensure that all findings, witness interviews, and document reviews remain privileged from discovery by the government. In my experience, the most effective internal investigations start with a "data map" identifying which departments, employees, and third parties may have relevant information, followed by a targeted collection of communications and financial records. You must also assess whether any employees are potential targets or merely witnesses, because this distinction will determine how you handle their representation and whether they need separate counsel under the principles of United States v. Stein, 541 F.3d 130 (2d Cir. 2008). A well-conducted internal investigation allows you to make a strategic decision about whether to cooperate with the government under the principles of the Yates Memorandum or to mount a defense that challenges the government’s evidence. Remember that any factual findings shared with the government can waive privilege, so you must work with counsel to create a "privileged report" that protects your company’s sensitive legal strategies.

Step Four: Control All Employee Communications with Federal Agents

Federal agents will inevitably attempt to contact your employees directly, often showing up at their homes or contacting them on personal cell phones without prior notice to the company. Under the Fifth Amendment of the United States Constitution, no employee is required to speak with federal agents, and I strongly advise that you instruct all personnel to politely decline any interview until company counsel is present. You should issue a formal directive, approved by your criminal defense lawyer, that all government inquiries must be immediately reported to the legal department and that no documents, electronic devices, or passwords should be provided to agents without a valid subpoena or search warrant. If agents do conduct interviews, your counsel should be present to assert all applicable privileges and to ensure that employees do not inadvertently make false statements under 18 U.S.C. § 1001, which carries a penalty of up to five years in federal prison. I also recommend establishing a secure communication channel for employees to report any coercive or intimidating conduct by agents, as such behavior can sometimes be challenged under the Due Process Clause. In one case I handled, a well-meaning junior employee voluntarily handed over a laptop to an FBI agent without a warrant, and that single act compromised our entire defense strategy for months.

Frequently Asked Questions

Q: What should we do if federal agents show up at our office unannounced with a search warrant?

If agents present a valid search warrant, you must not physically interfere with the search, as doing so could lead to obstruction charges under 18 U.S.C. § 1501. Immediately contact your federal criminal defense counsel and instruct all employees to step away from their computers and not to touch any files or devices. Do not allow agents to interview any employees without counsel present, and do not volunteer any information beyond basic identification. You have the right to observe the search and to obtain a copy of the warrant and a receipt for all items seized under Federal Rule of Criminal Procedure 41(f)(1)(D). In my experience, having counsel on-site during a search can prevent agents from exceeding the scope of the warrant and can preserve your ability to challenge the search later.

Q: Can our company be charged even if no individual employee intended to break the law?

Yes, absolutely. Under the doctrine of respondeat superior, a corporation can be held criminally liable for the acts of its employees if those acts were committed within the scope of their employment and with the intent to benefit the company, even if no senior executive knew about the misconduct. The Department of Justice’s Principles of Federal Prosecution of Business Organizations, outlined in the Justice Manual Section 9-28.000, emphasize that corporate liability does not require proof of intent by the company itself. I have defended companies where a single mid-level manager’s unauthorized actions triggered False Claims Act liability for the entire organization, resulting in treble damages and mandatory exclusion from federal contracting. This is why proactive compliance measures and immediate legal intervention are so critical—they can demonstrate to prosecutors that the company had robust policies in place and should not be held vicariously liable.

If your company is facing a federal investigation, do not wait for the government to dictate the timeline. Contact our office today for a confidential consultation. With over 25 years of experience as a federal prosecutor and now as a defense attorney, I will help you navigate every step of this process—from preservation of evidence to grand jury representation—and work to protect your company’s future, its employees, and its bottom line. Time is not on your side; call us now.