Buckley Commentary & Analysis

"Increased government demands for de-confliction will impede internal investigations" by Lauren R. Randell

The Department of Justice recently faced criticism for getting too involved in an internal investigation ostensibly conducted by a company’s external lawyers, with the government telling the company’s lawyers which employees to interview and what questions to ask them. But less attention has focused on cases in which the DOJ tells corporate investigators what not to do—that is, to omit certain interviews or investigative steps, in favor of letting the DOJ take the first crack at talking to relevant witnesses. The DOJ is now signaling that it may rely more frequently on this “de-confliction” policy, which favors government investigations at the expense of internal investigations and a company’s ability to gather facts, to achieve the same result.

The Chief Judge of the Southern District of New York determined in a recent case that the government had become so involved in directing an internal investigation conducted by Deutsche Bank’s external lawyers that statements made by an employee (who became a defendant) to the bank’s lawyers were effectively compelled statements made to the government that therefore could not be used at the employee’s criminal trial. Key to the court’s analysis was evidence that the government told Deutsche Bank’s external lawyers which employees to interview, and even what questions to ask. United States v. Connolly & Black, 16-cr.-0370 (CM) (S.D.N.Y. May 2, 2019).

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