FCPAméricas Blog
Best Practices for FCPA Investigation Document Holds – Part II
3.25.2014
Companies should take affirmative steps to ensure relevant documents are preserved when an allegation of a potential FCPA violation is made. This often results in the issuance of a timely document hold memorandum to relevant employees.
An earlier post describes the definition of the proper scope of the notice, who should receive it, routine documentation practices, and the category of documents to be obtained. This post discusses other important issues to consider.
Define the best time to send the hold. In general, document holds should be issued as soon as employees who may have relevant documentation are identified. This is especially the case when important facts under investigation are already known, making an immediate hold important. But there are also some situations where it may be wise to delay the issuance of the hold. As discussed in a previous post, companies conducting internal investigations in Latin America should keep in mind that holds can trigger massive losses of data, such as records being wiped-out and laptops “disappearing” under suspicious circumstances. Considering this, it is usually wise to preserve documents as early as possible and issue the document hold immediately after or simultaneously to it (instead of sending the hold upfront).
Conduct collection interviews. After defining who will receive the hold, to the extent possible it is advisable to conduct collection interviews with these persons. The purpose of the interviews is not to discuss substantive aspects of the matter being analyzed. Rather, the focus is to understand the employee’s current and past roles at the organization and reporting lines, and the nature of employee interactions with other employees and third parties. This information is often useful to identify additional employees and other types of documents that may not have been originally considered. Such interviews are also helpful to determining the location of physical and electronic data, which may expedite the review process later.
Use local language and establish a point of contact. Companies should issue the document hold in the local language in order to allow employees to understand what is been requested. Even when local employees speak foreign languages, use of local language is appropriate to avoid allegations of misunderstandings. The document hold should establish a point person to address any questions about whether or not specific documents should be preserved and to report instances of non-compliance with the hold.
Preservation of documents. Companies should assign one or more individuals to collect and preserve the relevant documents. It is important to make sure that these individuals are not personnel who may somehow become subjects of the investigation. One way to do this is to assign counsel to perform this function. This also helps guarantee the credibility of the investigation.
It is important that FCPA compliance officers explain to their personnel in Latin America and in other regions that early document preservation in their countries is essential and that failing to do so can lead to severe consequences in the United States and elsewhere.
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© 2014 FCPAméricas, LLC
Post authored by Carlos Henrique da Silva Ayres, FCPAméricas Contributor
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