Jonathan Drimmer on Cross-Border Corporate Investigations and Prosecutions Involving the Department of Justice
Over the past decade, there has been a dramatic increase in cross-border corporate investigations and prosecutions involving the Department of Justice (DOJ), and it has become critical for companies and executives involved in any investigation to understand what lies beneath the formal legal mechanisms for these investigations. This commentary, written by Jonathan Drimmer, an attorney at Steptoe & Johnson, who practices in international and commercial litigation and advises corporations on these matters, discusses how the game is really played.
The author writes: [T]he DOJ and its foreign counterparts historically have relied on letters rogatory to seek foreign-held documents or data, access to witnesses, or other information connected to an investigation. But letters rogatory are a cumbersome, “court-to-court” process. A prosecutor asks a domestic court to issue an order directed to a foreign court; the order is then submitted to that country’s ministry of foreign affairs, such as the U.S. Department of State in the United States; that agency transmits the order to the embassy located in (or responsible for) the pertinent foreign jurisdiction; the embassy forwards the order to the ministry of foreign affairs in that country; the order then is transmitted to the relevant justice ministry, namely, DOJ or its foreign counterpart; the order then is assigned to a prosecutor and presented to the foreign court for consideration. Given the number of legal institutions involved, and the fact that objections often are permitted in both the court issuing the order and the court considering the order, letters rogatory can move very slowly.
In part because of that hindrance, in the last three decades, the U.S. Government has begun entering into Mutual Legal Assistance Treaties ("MLATs"). Unlike letters rogatory, which are purely diplomatic in nature, MLATs create mutual legal obligations – they are bi-lateral treaties that bind both sides. They also operate more efficiently than letters rogatory; a request is made directly from one prosecuting agency to its counterpart, eliminating several steps and government institutions from the process.
While MLATs and letters rogatory are the primary mechanisms through which DOJ obtains or provides evidence abroad, those formal processes are only as effective as the informal cooperation that is involved. For instance, a helpful foreign official can share evidence that already has been gathered in a related investigation, or even find evidence or witnesses, so the prosecutor knows exactly what to ask for in making a request; an unhelpful foreign official would refuse any such assistance. A supportive foreign official will assist a prosecutor in navigating the intricacies of the foreign legal system, providing advice on how to overcome potential obstacles, such as secrecy or privilege laws, and pushing requests so they are acted upon quickly; an unhelpful official might provide no guidance, leaving the prosecutor to succeed or fail on his own, and put the request in a drawer where it will linger. A cooperative official will interpret a request broadly, to encompass the maximum amount of potentially helpful information, and correct any minor defects that might exist; an unaccommodating official would interpret the same request narrowly, decline it outright because of non-material errors, or even invent problems that do not in fact exist. An obliging foreign official will allow a prosecutor maximum participation in the process, such as by allowing him to directly question witnesses; a disobliging foreign official might refuse to allow any direct involvement. A helpful government will allow couriers to bring evidence to foreign courts to present to the judge or jury; an unhelpful government will refuse to allow evidence to leave its borders. Accordingly, while letters rogatory and MLATs exist as formal legal processes, in almost every circumstance their degree of effectiveness depends on the informal cooperation that exists between DOJ and its foreign counterparts. [citations omitted]