For a corporation receiving a grand jury subpoena, the most difficult (and expensive) part of a U.S. Department of Justice (DOJ) inquiry is often sifting through corporate data to find relevant material. That is proving to be increasingly burdensome to prosecutors as well—not just because it costs DOJ time and resources to review extensive data productions, but also because it can be a minefield for prosecutors trying to navigate disclosure requirements. A recent article from Bloomberg Law indicates DOJ is reconsidering how much electronic evidence it will collect going forward. This could bring relief to companies involved in federal inquiries, but could also mean DOJ will lean even more on companies to build its cases.
According to Bloomberg Law, DOJ is retooling its internal messaging and training to encourage “smart collection” efforts in the era of mounting corporate data, where requesting or seizing extensive electronic evidence comes with risks and potentially unmanageable review and compliance requirements. Whether and how DOJ will implement a policy of collecting less with a more targeted scope remains to be seen, but the very fact of the discussion indicates that some level of change is likely forthcoming.
Such a shift could mean that DOJ evidentiary demands will become more tailored from the outset, or at least more negotiable. It is already typical for defense counsel to negotiate more limited terms from the initial requests or demands. A shift in DOJ policy could alter the dynamics of those negotiations, with more substantive discussions about what the government knows and needs much earlier in the matter. This could be to the company’s benefit, saving time and money, and allowing for more control and practical solutions. But it could also mean the company becomes more of a handmaiden of the prosecutors. In some circumstances, one can imagine prosecutors spelling out the charges they seek to prove and demanding the company find any evidence that bears on those charges. Responding to such a demand would put a company and its counsel in a challenging position.
The challenge would be greater still if the company receiving the subpoena was a target of investigation, rather than a mere witness. A shift to more focused collections could dovetail with the most recent iteration of the DOJ’s “Yates Memo,” which reinstated the requirement that for cooperation credit companies must provide DOJ with all non-privileged information relevant to all individuals involved in the corporate misconduct. If prosecutors construe the targeted collection and cooperation credit policies together, they could seek to shift an even heavier burden of data collection, sorting, searching and production to companies and their counsel than is already the case.
For the time being, this is an important policy adjustment for defense counsel to monitor. The manner in which it is developed and implemented could have significant impacts—to the better or the worse—in a given investigation. It will be vital for counsel to engage with prosecutors early and to establish clear expectations from the outset as to what will be viewed as adequate cooperation in any targeted data production.
