Give Me Back My Books and Records: Application of Rule 41(g) in Response to Federal Search Warrants

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In the past decade, federal law enforcement has been more aggressive in white collar investigations in utilizing search warrants, as opposed to subpoenas, to seize a company’s books and records. The statute of limitations for most federal criminal offenses is five years, so the seizure of business records for an extended period can be highly disruptive of a company’s operations. During federal investigations, the government typically will refuse to tell the company under investigation exactly when a decision on prosecution will be made.

In many cases, the federal investigators will seize voluminous hard copies and electronic data from a company’s company’s headquarters. These documents may include personnel files, tax and financial records, customer and supplier information, computers and electronically stored information (ESI). If the company does not have electronic backup of its records, or if the backup records were also seized, then the company may face a long wait for the government’s return of its records if they are seized pursuant to a search warrant. Moreover, the company will be hard-pressed to conduct its own internal investigation of the allegations without access to the data.

Originally published in the White Collar Crime Report, 09 WCR 96, 02/07/2014.

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DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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