The Upper Hand

Editor’s note: This is a new feature called The Upper Hand. Lawyers doing something out of the ordinary will be highlighted, and they will share tips on how to improve your practice as an in-house attorney. This issue spotlights Andrew Weissmann, former head of the Enron prosecution now in private practice. Weissmann offers a keen insight on how in-house counsel can effectively respond to a government investigation.

Andrew Weissmann knows his way around criminal cases. For 15 years, the federal prosecutor tracked down financial shenanigans in a variety of industries.

Before joining the white collar criminal defense group of Jenner & Block in its New York City office earlier this year, Weissmann capped his government service by heading the task force investigating the Enron scandal. Weissmann coordinated the efforts of prosecutors and agents of the FBI and IRS as they methodically investigated the complex fraud case. He oversaw the prosecution of more than 30 individuals related to the company’s collapse, including Kenneth Lay and Jeffrey Skilling.

His days as a prosecutor taught him many lessons, one being that companies usually lack insight into what documents government agents might be seeking during an investigation. This can lead to decisions companies may later regret.

It’s important to always bear in mind that prosecutors view corporate offices as a potential crime scene, Weissmann explains. The location of documents in a particular office or on a specific computer could become important evidence in proving knowledge and intent of an individual employee. Accordingly, documenting chain of custody is a crucial aspect of producing documents to the government – a factor that companies often overlook, he says.

Companies that carefully list where documents are found will be likely better off in trying to show they are good corporate citizens, Weissmann says, which will help avoid criminal prosecution.

(Weissmann wrote an article on this issue that appeared in the May 30 issue of the New York Law Journal.)

The Jenner & Block partner recently took time to speak with Paul Boynton of In-House about how to effectively respond to government investigations.

In-House: Why is there a perception gap between prosecutors and corporations regarding what documents the government expects to be produced as part of a criminal investigation?

Weissmann: Mainly because of the differing experiences of government lawyers and corporate employees, including in-house counsel. They really can come at a problem from differing world views. And they have different perspectives on the usefulness of what they’re producing in discovery.

In-House: What should in-house counsel know to help their clients close that gap?

Weissmann: In-house counsel are very adept at figuring out ways to protect their clients’ interests. Here, in-house lawyers basically need to put on their “prosecutors” hat and consider how the government will potentially look at what the company is doing. This will help you make informed decisions on what your company should be doing. One good example is that chain of custody of documents is frequently overlooked. If you are asked by the government – “where was a document found and who found it” – which is a standard prosecutorial concern, it would be very helpful to your company if there is some written record showing the chain of custody and a witness if possible as well. A problem can arise when a company asks each individual employee to gather documents, but later an employee may not be available to testify on behalf of the company, if he or she becomes a subject or target of an investigation.

In-House: Why is documenting the chain of custody of internal documents so important?

Weissmann: From the government’s point of view, they want to establish knowledge and intent of a particular employee. In anticipating that an employee will say they don’t know about a particular document or issue raised in a document, the government wants to either corroborate that or disprove it by knowing what information was in the employee’s office at a particular time. A corporation may want to know what was physically in the employee’s office as well in either defending itself or in contemplating what action to take with respect to the employee.

In-House: What are typical problems corporations have in collecting documents and how can they be avoided?

Weissmann: The problems are worse in connection with hard copies as compared to electronic documents. In large corporations, electronic documents can be harvested centrally. And with meta-data, you can access the history of a document, what computer it’s found on, and how the document has been changed. As to hard copies, in a large scale investigation where there may be criminal liability, you should train certain employees to harvest hard copies. The company’s general employees should have little role in collecting the documents. Create search criteria for the trained employees to follow and create a clearly documented chain of custody. You need to let those trained employees know what they may be testifying about as well. That’s a good start

In-House: Why is it important to preserve identical versions of hard-copy and electronic documents?

Weissmann: The government may want to show that identical documents of incriminating evidence exist in a series of offices. The corporation may want to show the government it has cooperated and it has good procedures in place to harvest all relevant documents, including such identical copies. Those identical copies can also in certain circumstances be valuable in defending the corporation. The current state of case law may not require that identical copies of documents be preserved, but that’s not the best practice in implementing a documents review procedure.