USA Law and Practice Contributed by: Emily Hughes, Charles Kalil, Cori Lable and Ryan Raybould, Kirkland & Ellis
Civil investigations begin when a regulatory agency, such as the SEC or CFTC, begins exploring a civil claim against a potential defendant. Criminal inves - tigations are initiated by agencies working in part - nership with the DOJ, often through the local United States Attorney’s Office and Federal Bureau of Inves - tigation (FBI). Potential targets of investigations might be identified by a whistle-blower. In federal cases with possible civil and criminal claims, the DOJ encourages co-ordination of investigations with civil regulatory agencies – known as parallel pro - ceedings – to facilitate information-sharing between civil and criminal investigators where permitted. 2.3 Powers of Investigation In both civil and criminal investigations, the govern - ment can conduct voluntary interviews, make informal requests for documents or information, and issue sub - poenas both to investigation targets and to third par - ties for the production of evidence. Although it is pos - sible to seek to quash a subpoena in court as being overly broad, companies and individuals often nego - tiate with the government to narrow the subpoena’s scope. In federal civil cases, one form of information- gathering is a civil investigative demand requiring the production of specified documents or information. In criminal investigations, a grand jury may issue sub - poenas that compel production of documents or tes - timony. The government may also obtain search war - rants, which can be used to search particular places such as offices or databases, and to seize documents. To obtain a search warrant, investigators must provide probable cause that the stated offence has been com - mitted and that evidence of said offence is located in a certain place. In voluntary interviews with the government, the inter - viewee has no obligation to answer questions. The government can compel individuals to submit to ques - tioning in limited circumstances. A person responding to a grand jury subpoena for testimony must appear but may consult with their attorney outside the pres - ence of the grand jury before answering questions. A person may always refuse to answer a question if an answer would tend to incriminate that person, but may
not refuse to answer questions that would tend only to incriminate an entity or another person. The government also has broad authorities to trace, freeze and seize proceeds of a crime, including digital assets, bank accounts, real estate and other assets. This can be done in either a civil or criminal proceed - ing, and different rules and standards apply. 2.4 Use of Technology in Investigations Several US regulators have announced their use of advanced tools for investigating white-collar crime. For example, in June 2025, the DOJ announced that it was creating an inter-agency Health Care Fraud Data Fusion Center to “leverage cloud computing, artificial intelligence, and advanced analytics to identify emerg - ing health care fraud schemes”. In October 2024, the Treasury Department noted that it used “machine- learning AI” to recover USD1 billion in Treasury check fraud. Furthermore, the SEC has leveraged big data and analytic tools to identify suspicious trading pat - terns and accounting mismanagement. For defence lawyers, many discovery vendors now provide AI-related tools to assist in electronic docu - ment identification, prioritisation and review, and such uses are generally accepted by enforcement bodies. For corporate compliance departments, AI can be used to proactively identify risks and potential mis - conduct. While no laws specifically address the use of AI in investigations, white-collar lawyers should be mindful of court and state-level ethics rules that may limit the use of AI in court submissions and other for - mal proceedings. 2.5 Internal Investigations While not required, internal investigations help enti - ties to identify and remediate problems, and to decide whether to self-report to the government. Internal investigations are also used to demonstrate compliance and remediation efforts that can justify government leniency. The thoroughness of an inter - nal investigation is one factor considered by the fed - eral government when deciding whether to charge or penalise entities. For these reasons and others, including the applicability of attorney–client privilege in the USA, internal investigations should be carefully structured and executed.
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