When faced with allegations of wrongdoing, companies and their outside counsel generally will conduct their own investigation and report their findings to the government. In the past, such a presentation of the facts and evidence tended to be viewed as cooperation, but the government now expects more. As noted by Criminal Division Assistant Attorney General Leslie Caldwell, the Department of Justice "expect[s] cooperating companies to identify culpable individuals—including senior executives if they were involved—and provide the facts about their wrongdoing."
While counsel often consider the potential discoverability of their reports and interview memoranda in a parallel private litigation, counsel should also consider the possibility that individuals accused of wrongdoing may later claim that they have been defamed.
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