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Once you have even a hint of antitrust investigational interest possibly
heading in your direction, it is probably too late to start reviewing your
files to see whether they contain evidence of wrongdoing that might be
caught in a government investigation or in discovery in any private
litigation.
Think in terms of obstruction of justice, a felony, and of how you don’t
want to be associated with suggestions that your company engaged in such
behavior. Even a hint of that will cost everyone involved their jobs and
reputations.
On the other hand, there are very sound reasons for quarterly or semi annual
files reviews in those areas of your company where sensitivity is more
likely to occur. In the absence of impending exposure, it is not unlawful to
conduct such reviews on a regular basis for the purpose of finding and
correcting questionable evidence. The value of finding and correcting
conduct that, left ignored, might be likely to generate exposure risks
speaks for itself. In that mode, the purging of files is not something done
to hide from expected scrutiny, and no one has to hide that it is regularly
done. Irregularity of files review says more about it being for questionable
purposes.
While it may not be of antitrust significance, no company should ever
contemplate acquiring another company or being acquired by another company
without a thorough pre acquisition review of all files that would be part of
any due diligence associated with such a transaction. The same is true in
the instance of the formation of joint ventures, teaming agreements and
other forms of joint business arrangements.
These reviews should not be performed by in-house counsel. There is a
material difference between doing it with in-house counsel and doing it with
an arms length outside firm. The loyalties of anyone who is working for his
only client is often misconstrued as pressure to perform more assiduously
than might be professionally proper. The cost of that fee savings is often
extremely high. Outside counsel will also be able to manage post file review
communications with much higher comfort levels than full time company
personnel.
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