The US government has broad authority to obtain documents from individuals and businesses. The DOJ may seek documents by causing a grand jury subpoena to be issued. The DOJ also may seek information regarding potential insider trading 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. Prosecutors 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 it has first issued a formal order of investigation, a Divisional announcement allowing for the initiation of a private investigation.
The US government and the FCA in the UK also may request that companies or individuals voluntarily produce documents without using a compulsory process. A voluntary request may afford the recipient an opportunity to negotiate the scope of the production, explain conduct, or otherwise frame issues in the most favorable light.
In the UK, the FCA can require (i) individuals and firms to provide such information as is required as part of an investigation and/or (ii) the production of a report by a skilled person such as a law firm, commonly referred to as a Section 166 report. The FCA will require a Section 166 report where its objectives include obtaining expert analysis and/or recommendations for the purposes of seeking remedial action, among other things.
The FCA can also apply to the courts for a search warrant that allows it to enter and search premises in order to obtain evidence. There are limitations to these powers, however. For example, the FCA cannot compel any information that may be protected from disclosure by the existence of legal advice or litigation privilege.
Information can also be voluntarily provided to the FCA and this may be helpful where enforcement action is anticipated or underway.