Leslie Caldwell, head of the Justice Department’s Criminal Division, is, in her own words, “pounding the pavement on cooperation and transparency.”  Speaking on Tuesday at the New York City Bar’s fourth annual White Collar Crime Institute in Manhattan, Caldwell took another opportunity to discuss what the government expects of companies that seek to cooperate with criminal investigations.  She emphasized that companies choosing cooperation and expecting to get full credit must act with candor and give the Department all relevant information in a timely fashion. In particular, the Justice Department expects companies to learn and disclose all knowable, relevant facts and to share them, whether they be good or bad and no matter how high the rank of the individuals responsible for the misconduct.

While the Department will not dictate how or how much to investigate, she said that “a good investigation should focus on the problem at issue, determine the scope of that problem and investigate accordingly, and also focus on what compliance or cultural shortcomings allowed that problem to exist.”  Caldwell made it clear that the Department expects companies to take “reasonable steps to provide the Department with a full and accurate picture of what happened” but that absent a reason to do so, the Department does not expect companies to provide “a clean bill of health for the entire company worldwide.”  She encouraged companies to have open discussions with prosecutors to help focus internal investigations.

Caldwell also emphasized that the Department expects the timely provision of evidence, but she said that does not mean that companies need to call the government on day one.  Rather, she noted that it is in everyone’s interest for there to have been an “orderly internal investigation.”  The exact timing of disclosure will vary depending on the facts, but that “once companies know the facts” they should not delay in providing them to the Department.

Caldwell went on to note that a company’s cooperation “can be particularly helpful where the criminal conduct continued over an extended period of time, and the culpable or knowledgeable personnel and/or the relevant documents may be dispersed or located abroad.”  She said that “cooperation in these cases means helping to remove and overcome the barriers to identifying and producing the relevant information that we need to conduct a meaningful investigation.”

Responding to questions from the audience regarding evidence located outside the United States, Caldwell warned against withholding documents on the basis of foreign data privacy laws if those laws exist in name only.  She noted that while some countries have robust data privacy laws that are regularly enforced, others have data privacy laws that are “covered in dust,” citing the Czech Republic as an example.  According to Caldwell, companies should be wary of invoking data privacy laws that are never enforced if they want full credit for cooperation.