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.

Technical Considerations When Remotely Interacting With Government Agencies:

  • Know your audience. Any party appearing before a government investigative team needs to be able to gauge prosecutors’ and agents’ reactions to particular points and legal theories presented during a meeting in real time. Conducting conferences virtually due to COVID-19 makes that task significantly more challenging. Even for an in-person meeting, interpreting body language and tonal inflections takes effort, and when the parties are forced to interact remotely, it becomes even more difficult.

    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.

  • Be aware of your virtual surroundings. When sharing a screen, you should understand the distinction between sharing a single window versus sharing your entire virtual desktop. If the investigation team is exchanging private messages during a presentation to a regulator, you certainly do not want to inadvertently expose these messages or any other sensitive notifications through desktop sharing to the government.

Getting Ready for the Presentation to the Government:

  • Schedule a pre-call. A successful outcome begins with preparation for all parties. Start by setting up a pre-call with the regulators or prosecutors to walk through the agenda. Just as with an in-person meeting, punctuality, efficiency and brevity are imperative. Keep in mind that time is even more precious given the fact that virtual meetings lack the same accessibility for easily exchanging documents, making introductions, transitioning and closing. It is also helpful to clarify everyone’s familiarity with programs and processes, such as screen sharing and the mute button.
  • Anticipate the regulator’s response to the way in which the investigation was conducted. The stakes are different depending on whether a company is dealing with an investigation in response to potential wrongdoing or a routine compliance review. While it’s likely that many discussions related to compliance reviews will continue to be conducted virtually in the new normal, government prosecutors may well challenge the investigation team’s decision to remotely interview key witnesses or employees suspected of wrongdoing in certain instances. This is particularly so if the government subsequently conducts its own interview in person and identifies issues that were not discovered during the investigative team’s remote interview. As such, it is important to consider whether those portions of the investigation that were conducted remotely can stand up to government scrutiny.
  • Consider your organization’s data and analytics. From anti-money laundering (AML) to cybersecurity to fraud detection, regulatory technology (“regtech”) is playing an increasingly important role in the enhancement of regulatory processes. However, many companies’ data systems, while intertwined, are often siloed. Regulators are increasingly pushing for a combined analysis of data sets; thus, the ability to review and analyze data collected from the relevant data sets before meeting with a regulatory agency is likely to earn favor.
  • Limitations to Investigation. If you are dealing with certain limitations in the investigation, it is best not only to explain them to the government, but also to offer remediation plans. For instance, if certain data is currently unavailable due to restrictions in place stemming from the pandemic, the investigation team should be prepared to explain when that data will become available, or offer other ways of collecting the same information from alternative sources.
  • Provide Information Regarding Remedial Measures. If fraud occurred due to weakness in the internal controls, companies should be very clear when describing the compliance program they have in place, as well as improvements that have been made and will continue to be made to the program. The goal should be to assure the government that the company has thoughtfully considered how to prevent problems from reoccurring and has devoted sufficient resources to accomplish this goal.

During the Presentation:

  • Control the narrative. The most effective presentations are typically conducted using presentation slides (such as PowerPoint) that summarize key ideas and reference supporting documents. Rather than providing these in advance, however, sharing slides onscreen during the presentation ensures that you can direct the audience’s attention to specific slides and provide context.
  • Be forthcoming. While engaging in a dialogue with the government, it’s important to demonstrate that the company has been cooperating fully and with complete candor. Regulators and prosecutors are likely to be more sympathetic when the investigative team is forthcoming about both the good and bad documents. It’s normally wise to preemptively disclose problematic findings or behavior rather than risk the government’s uncovering the information on its own. The decision on what to disclose and when to disclose it is a complicated one, requiring consultation with experienced defense counsel.
  • Confirm timing with the behind-the-scenes team before promising deliverables. Know what’s realistic and avoid promising a delivery date when speaking with the regulators without first coordinating with those responsible for pulling information together. Missing a deadline can result in a loss of credibility and undermine the regulator’s confidence in the investigation. Most importantly, explain to government investigators — as early as possible — any technical limitations to responding to their data requests. Carefully describe any such limitations and be prepared to explain how they might be addressed with anticipated technology improvements.

A Mixed Future

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.

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