Navigating a Government Investigation: Insights for In-House Counsel

It is unwelcome news—learning that your company is the subject of a government investigation that will bring scrutiny, disruption, and risk to the business.  

In many cases, a government inquiry is a major event that can put a company’s operations, finances, reputation, and legal standing on the line.  The outcome will often depend on how the company responds, making it critical for in-house counsel to act fast and smart to protect the organization from fallout.  The following best practices provide a guide for in-house counsel facing the pressures of a government probe.

Anticipation, Preparation, and Coordination

Expect the unexpected

Particularly for companies in heavily regulated industries (but even for those that are not), in-house counsel should stay informed about agency action within their industry, including enforcement trends and investigations of peer companies.  In-house counsel can do this by paying attention not only to an agency’s formal rulemaking and announcements, but also to informal communications and public outreach (like press releases, speeches, and social media) that provide clues about the agency’s enforcement priorities.  

Anticipating that a regulatory inquiry may be forthcoming and preparing in advance will often lead to a more measured and thoughtful response, avoiding the stress and mistakes that may result when in-house counsel has to scramble to answer an unexpected request.

Be proactive in your planning

A key step is having a strategic plan in place that outlines the steps to take if an inquiry is received.  The plan should include promptly acknowledging receipt of the inquiry and beginning to review and gather relevant information to inform the response.  This process will typically involve a careful analysis of any documents received, understanding the investigation timeline, assessing immediate and long-term risks to the company, and communicating with internal and external stakeholders.

Orchestrate a strategic response

To coordinate an effective response, it is essential that in-house counsel clearly and frequently communicate with key stakeholders, including senior executives, the board of directors, relevant business units, and information technology personnel with knowledge of the company’s data and document management systems.  Establishing clear channels of communication will ensure that everyone contributes to the response strategy and execution in a timely manner.

In-house counsel should also consider engaging outside counsel with expertise in government investigations to help manage and execute the response.  Outside counsel can provide: (1) an unbiased perspective that courts and regulators tend to favor; (2) familiarity with the investigative process; (3) experience working with agency staff; (4) knowledge of the subject matter; and (5) additional resources to relieve the demands on in-house counsel and company employees. Collaboration between in-house and outside counsel is vital for developing a comprehensive and successful strategy to the often time-sensitive and voluminous demands of an investigation.

Scoping, Strategy, and Execution

Assessing the situation

At this initial stage, in-house counsel should identify the scope and nature of the investigation, including the agency involved, the target, the subject matter, and potential legal implications.  Together with outside counsel, in-house counsel should conduct a thorough legal analysis by reviewing the company’s policies, procedures, and previous compliance with relevant laws and regulations, as well as the known factual details.

Formulating a plan

With this information, in-house and outside counsel should jointly develop a strategic approach that both protects the company’s business interests and ensures regulatory and legal compliance.  One consideration is whether to conduct a parallel internal investigation to determine the facts where they are unclear.

Generally, it benefits a company to cooperate with the government and be transparent in its interactions with agency staff.  In some cases, a company can receive cooperation credit, which may be awarded at the agency’s discretion based on the nature and extent of cooperation.  See Arian M. June et al., Cooperating with US government investigations: the risks and rewards, Global Investigations Review (Aug. 15, 2024), available at https://globalinvestigationsreview.com/review/the-investigations-review-of-the-americas/2025/article/cooperating-us-government-investigations-the-risks-and-rewards.

A company should, however, also assess the risks of cooperation, which could be significant, and take precautions to protect its interests.  For instance, companies that cooperate by disclosing—at the government’s request—privileged documents related to its internal investigation may risk a ruling that it waived privilege in other legal or regulatory proceedings.  In-house counsel should carefully examine how to satisfy cooperation requirements in a way that maintains important protections like the attorney-client privilege.

Particularly with respect to a request for the production of documents, counsel should also advocate for its interests and negotiate the scope of the requests, where possible.  This involves meeting and conferring early in the investigation and establishing agreement on key aspects, such as:

• defining the scope of the document requests;
• limiting the number of custodians;
• limiting the number of senior executives designated as custodians;
• narrowing the relevant time frame for responsive documents;
• agreeing to the use of technology to ease the burdens of document review—including the parameters for technology assisted review (TAR) and artificial intelligence (AI);
• establishing reasonable timelines for production;
• defining the format and timing of privilege logging—including logging exclusions for certain categories of documents; and
• agreeing to the terms of court-ordered agreements on confidentiality and privilege (e.g., a protective order to safeguard sensitive business information and a Rule 502(d) order to protect against waiver).

A plan in motion

With a strategic plan in place, it is time to execute.  Although there are many steps in a company’s response, a primary aspect will involve the preservation, collection, review, and production of relevant documents.  Thus, one of the most critical steps for in-house counsel is ensuring that all potentially relevant documents are preserved.

Counsel should coordinate with IT personnel to ensure the company has identified and preserved all relevant data sources, including electronically stored information (ESI) and physical documents.  This includes ESI from communication platforms like Teams and Slack, mobile apps like Signal and WhatsApp, and social media platforms like Instagram and Facebook, where those tools were used for business purposes. 

Counsel should be mindful of court decisions on spoliation issues and take reasonable steps to preserve relevant data.  In particular, defensible preservation efforts should include (but are not limited to): (1) suspending routine automatic delete settings for ephemeral data; (2) collecting business data from custodians’ personal devices; and (3) preserving data from a departing employee’s computer and other devices.  See Robert Keeling, Corporate Internal Investigations, The General Counsel’s Guide to Government Investigations Fourth Edition at 446-447 (2024).

Implementing a litigation hold that instructs employees on the specific data to be preserved will help prevent spoliation and ensure compliance with legal obligations.  Litigation holds should be issued to custodians as quickly as possible, with appropriate follow-up to ensure the hold is being followed and updated as needed.  Counsel should also document its preservation efforts, including acknowledgement of hold responsibilities from custodians, to ensure it can defend its conduct should any alleged spoliation issues arise.

Post-Investigation Review

Once the investigation concludes, in-house counsel should conduct a debrief of the findings and take any necessary corrective action.  This may involve updating company policies and/or enhancing compliance programs to prevent similar issues from arising in the future.  Counsel should thoroughly document the process, outcomes, and lessons learned to improve the company’s readiness to respond to any future investigations.

The views expressed in this article are those of the authors and do not necessarily represent the views of their company or law firm and any of its clients.

Robert Keeling is a Partner at Redgrave LLP.  He represents clients in major regulatory enforcement actions, government investigations, and internal investigations, helping them navigate all phases of the discovery process.  Robert is based in the Firm’s Washington, D.C. office.

Ava Guo is Assistant Vice President – Senior Legal Counsel at AT&T.  In this role, she leads the company’s enterprise-wide eDiscovery Center of Excellence as well as the Legal Technology group within Legal Operations.  Ava is based in Washington, D.C.

Amy Hanke is Counsel at Redgrave LLP.  She works with clients to develop practical, innovative, and cost-effective eDiscovery solutions in litigation, regulatory actions, and investigations.  Amy is based in the Firm’s Washington, D.C. office.