This is a bit of a different one to what I usually comment on as this is a memo issued by Lisa Monaco – deputy AG over at The Department of Justice. This memo covers a load of content focused on how DOJ will go about its business and some steps it is undertaking to strengthen its corporate enforcement priorities and practices.
The most notable section from my perspective are the two paragraphs copied below…
“Companies seeking credit for cooperation must timely preserve, collect, and disclose relevant documents located both within the United States and overseas. In some cases, data privacy laws, blocking statutes, or other restrictions imposed by foreign law may complicate the method of production of documents located overseas. In such cases, the cooperating corporation bears the burden of establishing the existence of any restriction on production and of identifying reasonable alternatives to provide the requested facts and evidence and is expected to work diligently to identify all available legal bases to preserve, collect, and produce such documents, data, and other evidence expeditiously.
Department prosecutors should provide credit to corporations that find ways to navigate such issues of foreign law and produce such records. Conversely, where a corporation actively seeks to capitalize on data privacy laws and similar statutes to shield misconduct inappropriately from detection and investigation by U.S. law enforcement, an adverse inference as to the corporation's cooperation may be applicable if such a corporation subsequently fails to produce foreign evidence.”
Here it basically states that the DOJ will not accept a carte blanche statement saying companies cannot disclose because of foreign privacy laws, blocking statutes etc. In short, companies need to prove and illustrate it’s an issue and make efforts to find a solution to enable documents to still be disclosed.
Of course, every case will be different, but we have worked on multiple cases using a multitude of workflows and procedures to enable exactly this to take place.
It will be interesting to see how companies react to the DOJ in this respect.