A search warrant signifies that the government believes evidence of a crime exists at the location being searched. An entity can and should take certain basic steps now to attenuate the negative consequences of a surprise search in the future. At minimum, providers should designate a contact person at the facility who can effectively coordinate the assistance provided to government agents who are executing the warrant until qualified counsel arrives. The contact should know to call counsel immediately to assist in ensuring the warrant is conducted properly. The agents will be motivated to obtain as much information as possible from potentially knowledgeable staff, knowing that the government will have few opportunities in the future to speak with unrepresented witnesses. Limiting the agents’ access to employees while avoiding obstructing the investigation is critical and must be done with guidance from counsel.
Less disruptive and more common is service of a subpoena. A subpoena may be issued for documents or testimony and may originate from a government agency or a state or federal grand jury. A subpoena may have been issued to gather evidence for an agency civil investigation or for a False Claims Act whistleblower case. It may also be for a criminal investigation, as is normally the case when the subpoena is issued by a grand jury. As with a search warrant, a subpoena is normally served in person by a government agent. An employee contact should therefore be prepared to meet the agent and should know not to answer any questions. After the subpoena is served, the provider should immediately contact counsel to begin preparing the response. The time frame for response is typically short and the documents required are often voluminous. If the subpoena is for testimony, the witness who will appear for the provider will need to be thoroughly prepared to testify.
Increasingly, federal investigators employ civil investigative demands. This hybrid discovery method can include a request for documents, for answers to written questions, and for the testimony of employees. Responding to this “subpoena on steroids” will invariably be time-consuming and lawyer-intensive. Not only may a provider be required to review and produce documents (and of course assess the significance of the documents and their production in any ensuing investigation), the provider will also be required to prepare witnesses for questioning. Perhaps the only positive aspect of receiving a so-called “CID” is that they are issued only for civil investigations (including qui tam cases) and not for criminal matters. As with warrants and subpoenas, preparation can minimize the negative consequences of responding to a CID. The receipt of a CID, subpoena or warrant should trigger an internal investigation, supervised by counsel, to determine the purpose and scope of the investigation. Having counsel coordinate the investigation assures a through and objective review and can limit the possibility that the provider’s staff will become a witness in the case because of what he or she may discover. It also promotes candor from employees who may otherwise fear retribution, and enhances credibility in dealings with the government. Experience in such matters and relationships with prosecutors and government agents can also be invaluable.
While it is human nature to discount the possibility of being served with a warrant, subpoena or CID, it is a bad and potentially disastrous business practice. Instead, implementing relatively simple and cost effective measures in advance can offer important protections when a warrant, subpoena or CID arrives.
Richard (Rich) Glaze, a former federal prosecutor, is a partner in the Atlanta office of Balch & Bingham, LLP, where he defends health care providers and others throughout the Southeast from government investigations.