The US government has broad authority to obtain documents from individuals and businesses. The DOJ may formally seek documents by causing a grand jury subpoena to be issued.1 The DOJ also may seek information regarding potential FCPA violations by securing search warrants. A search warrant is a court order that authorizes law enforcement officers to conduct a search and seizure of property as evidence of a crime.2 Enforcement authorities may choose to employ search warrants if they are concerned that documents could be destroyed, or that the organization would not respond to a subpoena in good faith.
The SEC also can issue subpoenas as long as the SEC has issued a formal order of investigation, a Divisional announcement allowing for the initiation of a private investigation, necessary to subpoena witnesses.3
The government also may request that companies or individuals voluntarily produce documents without using a compulsory process.4 A voluntary request may afford the recipient an opportunity to negotiate the scope of the production, explain conduct, or otherwise frame issues in the best light.
In the UK, the SFO may issue notices (referred to commonly as Section 2 Notices) requiring companies or individuals to produce documents, information or other evidence. They may also obtain search warrants to enter and search premises and obtain evidence. It is a criminal offense to fail to respond to such notices or to provide false or misleading information in response to them.
1 1 Charles Alan Wright & Andrew D. Leipold, Federal Practice and Procedure: Criminal § 101 (4th ed. 2008).
2 Fed. R. Crim. P. 41;
3 15 USC § 78u(b); SEC Div. of Enf’t, Enforcement Manual, § 2.3.3 (2017) (SEC Enforcement Manual).
4 DOJ, Justice Manual 9-28.900; SEC Enforcement Manual, § 3.2.3.