USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
a leniency application, initial investigatory steps generally include accepting proffers of evidence from counsel representing the applicant, review of related documentary evidence presented by the applicant, and interview of key witnesses. The key next step is generally the issuance of subpoenas to companies who participated in the alleged cartel. In some cases, these may be immediately preceded by dawn raids or drop-in interviews at the homes of individuals the DOJ believes may have participated in or been aware of the conduct. 2.2 Dawn Raids/Search Warrants At the beginning of an investigation, the Divi - sion will sometimes conduct dawn raids with the assistance of the FBI. The DOJ must obtain a search warrant from a court before it can carry out a dawn raid. If the government arrives with a search war - rant, a company or individual will generally be required to: permit investigators to enter prem - ises and conduct the search; provide access to any relevant documents, including physical and electronic documents; and provide access to any computer systems or networks that may contain relevant information. There are restrictions on dawn raids; most notably the requirement that the investigators obtain a search warrant from a court. Access to computers and emails may be limited to docu - ments and communications relevant to the spe - cific subject matter of the investigation, and the seizure of relevant documents must be done in accordance with the search warrant and appli - cable law.
Companies can obtain copies of documents that are seized during the search, but the process of obtaining these copies can be protracted. Investigators cannot legally compel any individu - als to sit for interview or answer questions about the underlying conduct. The right of individuals not to answer questions (the right to remain silent) is a constitutional right protected by the Fifth Amendment. Nevertheless, if individuals choose to respond to investigators’ questions, they must respond truthfully to avoid potential In the United States, companies and individuals have an obligation to prevent or avoid spolia - tion of potentially relevant information as soon as they become aware of, or reasonably antici - pate, an investigation or litigation. This obligation includes taking reasonable steps to preserve rel - evant information, including physical and elec - tronic documents, data and other information that may be subject to discovery or subpoena requests. Failure to preserve relevant informa - tion can result in sanctions or adverse inferences against the party that failed to preserve the infor - mation, as well as criminal obstruction of justice charges. 2.4 Role of Counsel Individuals in US legal proceedings have a right to counsel. If an individual agrees to sit for a DOJ interview, the individual has a right to be represented by counsel during the interview. There are no formal rules governing the spe - cific scope of counsel’s participation in a DOJ interview. Individuals who sit for a DOJ interview generally do so voluntarily. Consistent with the client’s constitutional rights, counsel can advise his client to assert their Firth Amendment privi - leges and not to respond to the DOJ’s questions. liability for obstruction of justice. 2.3 Spoliation of Evidence
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