During the dawn raid
Managing the dawn raid
Co-operation: the firm has a duty to co-operate actively with the Investigators.
Shadowing: each Investigator should be accompanied by a “shadower” at all times. Shadowers should intervene if the Investigators seek to review documents which are irrelevant or privileged, and should keep a record of everything that happens, including which documents are copied and any questions asked.
Questioning of individuals: seek to postpone any detailed questioning until lawyers can be present, and ideally until after the dawn raid has ended. If an individual is suspected of a criminal offence, consider the need for separate legal representation.
Seals: seals applied by the Investigators must not be tampered with in any circumstances and the firm must take all appropriate steps to prevent this.
Managing paper documents
Managing IT issues and electronic documents
Limits on the dawn raid
Photocopying paper documents: Staff should be appointed to photocopy documents for the Investigators/supervise the Investigators if they insist on doing the copying themselves. Consider making a second set of all copies unless there are privilege concerns (a second set for the firm’s records). Seizure of originals: in some jurisdictions, the Investigators may have powers to seize original documents. Consult in-house/external lawyers if you are unsure of the position. Disputed documents: if there is a dispute as to whether the Investigators can review a particular document (e.g. on grounds of privilege or relevance) the document should be placed in a sealed envelope and not read by the Investigators.
IT support: ensure that a senior member of the IT team is available to provide support to the Investigators as required (including temporarily disconnecting computers from the network, blocking e-mail accounts, providing access to documents, etc.). Electronic copies: the Investigators may wish to take electronic copies of electronic documents. If they wish to take a forensic copy of an entire hard drive or similar device, consult in-house/external lawyers to confirm whether this is permissible under the applicable rules. Keyword search terms: take a note of any forensic IT search tools used by the Investigators, including any keyword search terms.
Relevance: ensure the Investigators are not given access to documents which are not relevant to the subject matter and purpose of the dawn raid, as set out in the authorisation documents. Privilege: if possible, try to ensure privileged documents are identified and removed before the Investigators review the file in question. Agree a process with the Investigators for dealing with privileged documents. Self-incrimination: check whether the privilege against self-incrimination applies under the relevant procedural rules. If it does, object to any question where the answer could be self-incriminating, i.e. amounting to admission of infringement.
Confidentiality: the fact that a document contains business secrets does not protect it from disclosure to the Investigators.
Ensure all decisions and agreed approaches are communicated to all members of the response team as quickly as possible throughout the dawn raid
Throughout the dawn raid, ensure all shadowers pass copies of any potentially incriminating “hot documents” to the central senior team without delay – this will be key to the ongoing risk assessment.