With the publication of the Yates Memorandum in September 2015, the Department of Justice (DOJ) has reinforced its focus on seeking accountability from individuals. The DOJ plans to accomplish its goal by requiring corporations to completely disclose "all relevant facts about individual misconduct" in order to receive cooperation credit.(1) Because the DOJ has promised to focus more intently on the culpability of individuals, employees may be at greater risk from corporate investigations, particularly with respect to their work emails and other documents. As a result of that increased risk, company counsel may receive more requests from individual counsel regarding the production of employees' documents. Individual counsel are likely to try to gain a greater understanding, at an earlier stage in the investigation, of how their clients are being portrayed to investigators. If individual counsel become concerned that favourable documents are missed and not produced, they may take a more active role in pushing for the production of other documents perceived to be favourable to their clients.
As often happens in a federal investigation of a corporation in the United States, the targeted company will receive a subpoena and subsequently retain outside counsel to produce documents in response. These documents are often collected from individual employees' hard copy and email files. Document productions may not necessarily involve the documents of every employee at the company. For example, the company may propose a list of specific employees whose documents it plans to produce, or investigators may request that the company produce documents of particular employees or even groups of employees (eg, all sales representatives, regional managers, national managers, directors and officers). In the past, individual counsel may have requested that the company share the employees' produced documents, but traditionally they made few requests to the company concerning its document productions.
Now, the Yates Memorandum may change the calculus of the document production process. Employees may begin to retain counsel earlier in an investigation out of an abundance of caution, especially if they have been named as a custodian in a document production. Individual counsel, knowing that the Yates Memorandum is being implemented, will likely become more vigilant with respect to their clients' documents. For example, company counsel may now receive requests from individual counsel not only for produced documents, but also for those that were not produced. Given the volume of emails and other electronic documents, many employees may not recall every favourable document that exists within their inboxes. Therefore, individual counsel may wish to do their own review of the documents to ensure that favourable documents relating to the employee have been produced in the hope of obtaining a more advantageous position for their client.
Company counsel may have to wrestle with new issues if individual counsel decide to become more involved in the document production process. Companies may not want to grant the requests of individual counsel because they are too costly or time consuming, or because they fear the possibility that the government will view the company as uncooperative if it is seen as coordinating with individual counsel. Moreover, companies may not welcome the efforts of individual counsel to second guess their document productions.
Individual counsel may also face new issues if they decide to become more involved in making requests about their clients' documents. If individual counsel become too involved in the production of documents, company counsel or the government may conclude that individual counsel are worried about their client's potential liability and that further investigation of the client is warranted. On the other hand, if individual counsel proceed in making requests for the production of documents without having all of the facts, company counsel or the government may accuse the individual of trying to mislead the investigation, which presents another level of risk. Going forward, individual counsel will have to weigh carefully the benefit of putting forth favourable documents against the risk of placing their client in the spotlight of the company and the government.
With the DOJ's renewed focus on seeking accountability from individuals, all employees – from executives to managers to lower-level employees – may find their documents susceptible to collection, review and production. The Yates Memorandum explains that in large corporations, "responsibility can be diffuse and decisions are made at various levels", thus requiring investigators to undertake "a painstaking review of corporate documents".(2) No corporate employee's documents will be insulated from the probe of an investigation and the Yates Memorandum may prompt individual counsel to become more involved in document review and productions. With the DOJ requiring the utmost cooperation and individual counsel requesting more information, companies and their counsel may experience increased pressure from both sides in future investigations.
For further information on this topic please contact Kelly A Quinn at Hogan Lovells US LLP by telephone (+1 202 637 5600) or email ([email protected]). The Hogan Lovells US LLP website can be accessed at www.hoganlovells.com.
Endnotes
(1) See Yates Memorandum at 3.
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