Reproduced with permission from White Collar Crime Report, 09 WCR 96, 02/07/2014. Copyright 姝2014 by The
Bureau of National Affairs, Inc. (800-372-1033) http://www.bna.com
SEARCH AND SEIZURE
Give Me Back My Books and Records:
Application of Rule 41(g) in Response to Federal Search Warrants
BYCRAIG S. DENNEY AND JUSTIN R. COCHRAN
In the past decade, federal law enforcement has been
more aggressive in white collar investigations in uti-
lizing search warrants, as opposed to subpoenas, to
seize a company’s books and records.
1
The statute of
limitations for most federal criminal offenses is five
years, so the seizure of business records for an ex-
tended period can be highly disruptive of a company’s
operations. During federal investigations, the govern-
ment typically will refuse to tell the company under in-
vestigation exactly when a decision on prosecution will
be made.
In many cases, the federal investigators will seize vo-
luminous hard copies and electronic data from a com-
pany’s headquarters. These documents may include
personnel files, tax and financial records, customer and
supplier information, computers and electronically
stored information (ESI). If the company does not have
electronic backup of its records, or if the backup re-
cords were also seized, then the company may face a
long wait for the government’s return of its records if
they are seized pursuant to a search warrant. Moreover,
the company will be hard-pressed to conduct its own in-
ternal investigation of the allegations without access to
the data.
2
Rule 41(g)
There is a seldom utilized, but powerful, tool a com-
pany may use for obtaining relief from the court in get-
ting business records back even when there is no pend-
ing case with the court. Rule 41(g) of the Federal Rules
of Criminal Procedure can compel the government to
decide whether to file charges or be forced to return the
company’s records.
3
This article provides an overview
of Rule 41(g) to assist counsel in understanding the re-
quirements.
4
1
The Justice Department has utilized more powerful inves-
tigative tools such as search warrants and Title III electronic
surveillance in white collar investigations in the past decade.
These tools were historically used in narcotics and organized
crime investigations while subpoenas were the standard tools
in white collar cases. Times have changed.
2
An internal investigation of the allegations is crucial to the
company’s determination of whether it (and employees) vio-
lated the law and, if so, whether it was an isolated instance or
a more pervasive pattern exists.
3
The authors recognize that many companies may prefer
not to goad the government into making a prosecution deci-
sion on abbreviated notice because it may be devastating to the
business if an indictment is filed. One remedy the government
has to respond to a Rule 41(g) motion is simply to seek an in-
dictment, which will make the motion moot. However, if the
company faces a multi-year federal criminal investigation
without access to its business records, there may be need for a
more expeditious alternative than simply ‘‘waiting to see what
happens.’’
4
In a recent federal investigation of a business in Nevada,
the authors were successful in obtaining a federal court order
directing the federal agents to return all of the company’s
original books and records (a truck full) after they had been
seized from the business pursuant to a search warrant more
Craig S. Denney is counsel for Snell & Wilmer
LLP in the firm’s Las Vegas and Reno, Nev.,
offices.
Justin R. Cochran is an associate in the firm’s
Las Vegas office.
COPYRIGHT 姝2014 BY THE BUREAU OF NATIONAL AFFAIRS, INC. ISSN 1559-3185
White Collar Crime Report™
