USA Law and Practice Contributed by: Djordje Petkoski, Matt Modell, Memmi Rasmussen and Tim Harris, A&O Shearman
Individuals may choose to obtain separate coun - sel, particularly if there is potential for a conflict of interest between the individual and the com - pany. In some circumstances, the company may even be required to advise employees to obtain separate counsel, particularly when there is a risk that the interests of the individual and the company may diverge. Because of the high cost of competent counsel in the US, companies will often pay for separate counsel for their offic - ers and employees. This enables individuals to secure effective representation that may other - wise be cost prohibitive. Companies generally benefit when their employees are represented by competent counsel for multiple reasons, includ - ing protecting the rights and interests of their employees and facilitating effective joint defence efforts. During the initial phase of an enforcement action, defence counsel generally focus on obtaining a quick understanding of the underlying facts and evidence to begin developing an effective strategy. This generally involves interviewing key individuals as soon as an investigation starts or evidence of a potential violation surfaces. It also involves speedy preservation, collection and review of relevant documents. 2.5 Obtaining Evidence/Testimony The DOJ can obtain documentary evidence or testimony during an investigation of alleged car - tel behaviour by issuing subpoenas or obtaining search warrants from a court. Leniency appli - cants may also provide documents and testi - mony as part of their co-operation obligations. Non-documentary information, such as witness testimony or expert opinions, may be obtained by enforcement agencies through interviews. The DOJ may also obtain sworn testimony from witnesses through a grand jury, which is com - prised of a group of citizens who must approve
all decisions by the DOJ to bring formal criminal charges against a defendant. Procedural and substantive requirements vary depending on the specific means used to obtain evidence, but in general, the DOJ must comply with constitutional protections against unrea - sonable searches and seizures and ensure that the scope of their requests or searches is rea - sonable and proportionate to the investigation at hand. Defendants may seek redress from a court if they believe the DOJ is exceeding its author - ity or violating their constitutional or legal rights. 2.6 Attorney-Client and Other Privileges US laws provide strong attorney-client privilege and related protections for communications with both outside and in-house counsel as well as materials prepared by counsel in anticipation of litigation. The attorney-client privilege protects confiden - tial communications between attorneys and their clients made for the purpose of seeking or providing legal advice. Communications with in- house counsel are generally protected under the attorney-client privilege if the communications were made for the purpose of seeking or pro - viding legal advice. The work product doctrine also protects documents and materials prepared in anticipation of litigation or for trial by or for a party or its representative. A company can waive attorney-client communications, which is why it is often important for individuals to have sepa - rate counsel. There are other privileges recognised in the United States that may be pertinent to a cartel investigation. For example, the Fifth Amendment to the United States Constitution provides a privilege against self-incrimination, which can be asserted by an individual in response to ques -
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