5 Mistakes to Avoid in Responding to a Government Investigation

By Steve Schleicher, Stephanie Laws, and Samantha Bates

Companies of all types and sizes may find themselves under scrutiny of the government. Whether it is in the form of a subpoena, a Civil Investigative Demand (CID), a search warrant, or an informal request for information, inquiries from the government are expensive and disrupt business as usual. And when government investigations become enforcement actions, they can create public relations nightmares and potentially expose the company—and its employees—to civil and criminal liability.

Company leaders may not know how to respond, what the law requires, what to tell their employees, or where to get help. Knowing what to avoid is a good starting point.

Mistake No. 1: Ignoring the problem.

If your company receives a subpoena, CID, search warrant, or even an informal request for information, the worst thing you can do is ignore it. If you receive a CID requiring witness testimony, interrogatories, or documents pursuant to 31 USC § 3733, you must comply with the request within the specified timeframe. Failing to do so could lead to severe consequences, including fines, penalties, and even criminal charges. Similarly, neglecting to respond to a subpoena or search warrant can result in serious repercussions. While ignoring an informal request for information may not expose you to the same legal penalties, it can lead to a missed opportunity to assert some control over an impending investigation.

When responding to such inquiries, it’s crucial to consult early with qualified legal counsel. They can help you avoid common mistakes, communicate with the relevant enforcement agency, negotiate the scope of the demand, and extend the response deadline if necessary—if you fail to meet the timeline, you face potential consequences. Counsel can also assist in determining the appropriate level of detail in your response—providing a truthful yet concise answer is critical. Over-responding can be just as harmful as not responding at all.

Mistake No. 2: Providing false information.

Supplying inaccurate information or omitting critical details in a response can have dire consequences. It’s essential to be honest in your answers; failing to do so, or concealing a material fact, can lead to government scrutiny, expand the investigation, and even result in charges for making false statements or concealing information under 18 U.S.C. § 1001. It is equally important to be precise. An inaccurate response, even if unintentional, can have serious consequences. If you are uncertain about how to respond or how much information to disclose, consulting with qualified legal counsel before proceeding is essential.

Mistake No. 3: Destroying evidence.

When served with a CID or subpoena, the first step is to implement a legal hold on all relevant documents and electronic records. This hold should apply to paper documents, digital files, physical items, and any data pertinent to the investigation. Legal holds are critical to ensuring that nothing related to the inquiry is lost. In many cases, documents and records contain vital information that can help demonstrate that no wrongdoing occurred, or at worst, that it was unintentional. On the other hand, if documents are destroyed—even accidentally—the government may assume it was intentional. The last thing you want is to face obstruction charges because you failed to properly institute a legal hold.

Mistake No. 4: Disorganization.

Agency requests often involve large-scale document productions, with CIDs frequently requiring the turnover of thousands of records within a tight timeframe. Once the scope of the demand is established, ideally with the support of outside counsel, it’s essential to form a focused internal team to collect the required responsive records. This team may need to include personnel from various departments within your organization to comprehensively address the agency’s requests. Prompt action is critical—it’s important to organize and document each disclosure using a consistent process, including keeping detailed records of any communications with the government. Additionally, it is important not to forget that any attorney-client privileged communications must be withheld or redacted prior to disclosure.

Mistake No. 5: Failing to bring in experienced outside counsel.

Having experienced outside counsel to help you understand the process and serve as a guide is crucial. It ensures the appearance of a neutral party conducting the investigation, helps protect attorney-client privilege as inhouse counsel privilege claims are heavily scrutinized by courts, and removes all possible internal biases that could affect an investigation.

Maslon’s Investigations Team, led by former U.S. attorney Steve Schleicher, has represented companies and their leaders in virtually every type of government investigation imaginable. Our deep bench of former prosecutors and experienced civil litigators have investigated alleged fraud, employment issues, product liability claims, and many other business challenges. We have seen what works, what doesn’t – and what is likely to get a company in even more potential trouble.

Contact us for more information on how we can help your company minimize risk in a government investigation.

Steve Schleicher, a former federal prosecutor and renowned trial lawyer, is a partner and chair of the Investigations & White Collar Defense Group at Maslon LLP. He is well known for his role as special prosecutor in the trial of Derek Chauvin for the murder of George Floyd.

Stephanie Laws is a partner and co-chair of the Tort & Product Liability Group at Maslon LLP. She frequently conducts internal investigations and helps companies respond to government enforcement actions.

Samantha Bates is a counsel attorney at Maslon LLP and a former federal and state prosecutor who specializes in government and internal investigations as well as complex business litigation.