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Competition Law

Analysis - debate - current awareness

18 SEP 2015

At the end of the day

John Cassels

Partner

At the end of the day
Being the target of a raid by regulatory authorities in the EU, and particularly the EU's antitrust authorities, is a traumatic experience. Officials from the EU Commission and/or a national regulatory authority turn up announced and have powers to demand access to documents, IT hard drives, and phones; to interview staff; and to take copies of any data which in their view may be relevant to the investigation.

In a recent clarification of its guidance on dawn raids, the EU Commission has confirmed that it may seize data from private smartphones, external hard drives and cloud computing services.

One of the most important steps in handling a raid, is to appoint a team leader at the start of the day. That person takes responsibility for briefing the team that will shadow the investigators, be a contact point for the lead investigator, resolve disputes about IT access and legal privilege, sign minutes of conversations and keep documents lists, and generally supervise the handling of the raid.

However, handling matters at the end of the day is just as important as getting things right at the beginning of the day. We have found the following to be key 'end of day' actions that should be on the checklist of every team leader:

  • When investigators have finished searching, but have not yet left the premises, ensure that they do not walk freely around, speak to employees, or use photocopying facilities unsupervised.
  • Compare shadowers' lists with the investigators' lists of documents and goods seized and copied. Resolve all discrepancies before the investigators leave.
  • Ask for copies of the investigators' document log (on which all documents should have been given an ID number).
  • If original documents are being removed, confirm in writing when and how they will be returned.
  • If objections have been made about the removal or copying of any documents (for example, where legal privilege claims have been ignored), make sure that a written record is kept by the lead investigator.
  • Confirm if and when the investigators will return: how many; for how long; and what will they want to see.
If you would like more information or discuss these issues, please do not hesitate to contact John Cassels at john.cassels@fieldfisher.com
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