In a highly regulated industry such as health care, it is not uncommon to be the subject of a government investigation. In-house counsel and leadership must be prepared in advance for the possibility of a search warrant being served on their organization as a result of an ongoing government investigation.
"In these cases, the stakes are high and a health care company must proceed cautiously," said Ober|Kaler's Gina L. Simms. "It is really important, even necessary, for companies and providers to have a protocol in place to guide employees on how they should respond when law enforcement arrives with a search warrant."
Gina and colleague James P. Holloway emphasize the importance of developing clear guidelines and procedures to help inform and educate employees about what to expect, and how to respond, if a search warrant is issued. Continued below the video...
How to Respond to a Search Warrant: 10 Practical Steps
1. Remain calm. This may not seem easy, but it is very important to remember.
2. Contact a lawyer. If you can't reach an attorney immediately, contact a designated managerial employee who is the point person to interact with law enforcement for the search warrant.
The person who has the first contact with law enforcement on the premises should notify the organization's legal department immediately. That legal department should contact experienced criminal counsel. It really is prudent to obtain advice from experienced counsel as quickly as possible. If you don't have a legal department, then the name or contact information for experienced counsel should be posted for the employees to see.
3. Ask the agents for identification, who is in charge of the search, and for contact information for agents on the scene. Staff should also try to get the name of the prosecutors working with law enforcement on the investigation. This information may prove helpful to the attorney who is representing you. Your attorney may try to contact the prosecutor from the scene.
4. Ask for a copy of the search warrant and attachment, and review them. These documents describe the locations or areas that the agents have the authority to search and the types of documents and items (like computers, file cabinets, etc.) that they are authorized to search and/or seize. The agents are required by law to give these documents to you.
5. Make notes describing the documents and items seized by law enforcement. These documents can include patient files. Also, note the areas that the agents search such as specific file cabinets, desks, offices or storage areas. This is also very helpful information for your counsel.
6. Do not give consent to search extra areas without conferring with an attorney. If you are unable to reach an attorney, do not give consent. This can be an area of confusion for many employees, which is why it's important staff be prepared to handle this kind of scenario. In some cases, agents may attempt to go beyond the physical areas and documents that they're authorized by the judge to search and seize. The way that they do this is to try to get your verbal consent to search those extra areas. Firmly, but courteously, tell the lead agent that you need to talk to an attorney about whether you should consent to the request and then contact counsel immediately. If you cannot reach counsel, do not give consent.
7. Be calm, courteous and professional with law enforcement; do not obstruct their efforts. Do not physically get in the way of the law enforcement search team, and never destroy any documents. You don't want to be accused of obstructing the agents' efforts. But, you should also know that you are NOT required to assist the agents during their search.
8. Advise employees of their rights. Consider sending non-essential employees home. The search warrant does not give agents the authority to interview your employees, but they may try to do this while they are onsite. Employees cannot be arrested for refusing to talk to law enforcement and need to know this fact in advance.
9. Get a copy of the search warrant inventory and provide it to counsel. The agents are required by law to leave a list of the documents and items that they have seized on the premises. This list can help your counsel better understand the possible scope of the government's investigation.
10. Don't be surprised if you get a "clean up" subpoena. Provide that to counsel. This could be, for example, a grand jury subpoena for documents, which the government will sometimes issue to a provider to make sure that it obtains all relevant documents. Provide a copy of that subpoena promptly to experienced counsel.
Remember, being issued a search warrant does not necessarily mean that your company is the target of a criminal investigation, but it does indicate that your organization may possess information that is relevant to an investigation.