The final article in a series on remote investigations looks at how to meet the unique expectations of enforcement agencies under COVID-19 restrictions.
When the pandemic struck early last year, investigative activity slowed down significantly. Since then, a “new normal” has taken hold. Investigation teams have returned to work remotely, knowing that COVID-19 restrictions will remain in place for some time. Similarly, government investigators from executive departments and agencies such as the Securities and Exchange Commission (SEC), Department of Justice (including the Federal Bureau of Investigation), Internal Revenue Service and Postal Inspection Service have ramped up activity and are no longer as patient about postponing investigations and prosecutions as they were earlier in the pandemic.
Although the pace of investigations is slower than in pre-pandemic years, the rigor with which agencies conduct investigations, as well as regulators’ expectations, remains unchanged. There are, of course, practical investigative challenges, but these now compel parties under investigation to develop alternative means and tactics by which to present their findings and conclusions effectively. Because a majority of meetings now occur virtually rather than in person, additional planning plays a critical role.
In this article, we explore a number of related best practices that should be considered.
It's also imperative that defense lawyers anticipate challenges of the remote setting and work to mitigate those obstacles before meeting with the government. For example, since each regulatory agency is operating at a different level of capacity, it’s wise to confirm where employees are located prior to sending evidence binders and underlying documents for a meeting to help reduce the chances of materials arriving in an empty office. Further, government teams may have individual preferences in the handling of documents remotely, which can impact how the parties present arguments as well as choose platforms by which to conduct meetings.
The presentation of the results of a remote investigation to regulatory agencies and prosecutors will likely evolve based on the successes that develop out of this unique period. Going forward, some facets of an investigation will likely include more remote elements, such as interviewing fact witnesses virtually.
Meeting with regulatory agencies remotely is unlikely to replace all in-person meetings over the long term. While interim updates and follow-up questions may be addressed virtually in this changed world where jumping on a video call has become more common, face-to-face interactions with law enforcement and regulatory agencies will always be the gold standard when it comes to building credibility and influencing government decision-makers.
This is the fifth article in a series on conducting remote investigations. The first article provided a general overview on the state of remote investigations today, the second article covered leading practices for planning and managing remote investigations, the third article looked at data collection in a remote investigation, and the fourth covered onscreen interviewing techniques.