The use of search and seizure powers by the Australian Competition and Consumer Commission (ACCC) puts domestic and multi-national corporations at risk of significant penalties and brand damage. Importantly, the way in which corporations respond, by providing either too little or too much cooperation to the ACCC, can have a significant impact on the ability of the corporation to minimise the impact of an investigation.
Business information and documents are highly commercially sensitive so it's important that they are not provided to the ACCC as part of a dawn raid other than through the appropriate use of a search warrant. To assist employees to remember the most important aspects of the search warrant process and the right way to respond, we have set out below a user friendly checklist of key actions if the ACCC comes knocking.
1. Ask to see the search warrant and make a copy
Check that the warrant applies to the correct premises and time, specifies the responsible ACCC Inspector and sets out the kind of evidential material and relevant contraventions. If the warrant is deficient, the ACCC may not enter without permission.
2. Check the identity of the ACCC Inspector and other investigators
Check that the Inspector is the person named in the warrant and record the names and position titles of each person executing the warrant (which can include Australian Federal Police Officers or IT consultants).
3. Show the investigators to a meeting room or area that does not contain any files or documents
You must provide all reasonable facilities and assistance for the effective execution of the raid. The Boardroom is a good location to take the investigators. The investigators should be accompanied at all times.
4. Ask for time for your external lawyers to arrive
The investigators may agree to provide a reasonable opportunity for your external lawyers to attend, including if you provide an undertaking that documents will not be removed or destroyed in the meantime. If they refuse then you must permit them to enter and conduct their search.
5. Appoint a liaison officer to handle contact with the investigators
This person is required to answer questions and manage the production of evidential material to which the warrant relates. This person should be the most senior manager available. The liaison office may later hand over the role to a lawyer.
6. Assemble the key individuals responsible for dealing with the investigation
The response team should include the most senior manager available, a senior internal and external lawyer, a senior IT specialist, administrative staff and a note taker to keep a full record of all discussions with the ACCC and documents seized. The role of the response team is to shadow the investigators, ensure that staff do not destroy documents or otherwise obstruct investigators and maintain a written record of the search.
7. Brief staff at the earliest convenient opportunity
Staff should be made aware that an ACCC search is in progress. Staff should be reminded that under no circumstances should they destroy documents or information, they should provide reasonable assistance to the ACCC and they should keep the fact of and details of the search confidential.
8. Take care with questions from investigators
Staff are obliged to answer the ACCC's questions related to the warrant. They should be honest and cooperative but do not volunteer information. Where substantive questioning is required, request that a lawyer is present. If in doubt, contact the legal department for assistance.
9. Monitor what materials the ACCC demands and seizes, and make copies
You are entitled to observe the raid being conducted provided you do not hinder or impede the process in any way. Investigators must limit their requests to evidential material specified in the warrant and cannot go on a 'fishing expedition'.
10. Supervise operations on the IT system
Investigators are allowed to operate their own electronic equipment and your electronic equipment during the search and an IT specialist should be on hand to provide access and unlock accounts as requested. They should also monitor and record all key word searches conducted by the investigators and supervise what the investigators are doing on the system.
11. Do not provide copies of legal advice or communications with legal advisors
You are not required to and should not provide information or material which contains or relates to legal advice or material which contains legal advice on actual or anticipated proceedings. Try to agree to pre-check documents for legal privilege. If investigators take large numbers of documents or electronic files, inform the investigators that the material may contain privileged documents and that privilege has not been waived.
12. Request copies of material seized by the ACCC
You should request copies of material seized by the ACCC. If requested, the ACCC must provide copies of material seized as soon as practicable after the seizure. The ACCC must also provide a receipt for all material seized.
13. Coordinate an end of day meeting
Coordinate to meet with the ACCC at the end of the day to determine what information is being seized or copied and to settle any outstanding disputes concerning relevance and privilege. Do not sign any minutes of the meeting until any points of contention are documented.
This checklist provides an overview of the key issues arising from ACCC dawn raids in Australia. Baker & McKenzie regularly advises clients on the development of detailed dawn raid response guidelines, including multi-national clients operating in a range of jurisdictions.