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Search Warrant Affidavits: What to Do

By Brien T. O'Connor and Randall D. Katz

Federal agents descend upon a manufacturing facility of a publicly traded client that makes parts for Department of Defense contractors. The agents conduct a day-long search and drive away with hundreds of boxes of documents, as well as data downloaded from company computers. You are the company's counsel, and within 2 days you piece together the government's core theories and many of the 'facts' that caused it to conduct the search.

The government has filed under seal a detailed affidavit with the search warrant that could help formulate a strategy for your client. But obtaining it unsealed may be a mixed blessing: The affidavit is likely loaded with scathing allegations by a government agent ' complete with citations to fraud and corruption statutes and possibly RICO ' based on untested hearsay and the word of a whistleblower with a profit motive. Such allegations, if made public, could cause serious problems for your client. While the lawyer for an organized-crime figure without a good reputation to lose would want the affidavit unsealed, counsel for a business must weigh the potential damage from release of these allegations against the benefits to be gained from seeing the government's theories and 'facts' in the warrant affidavit.

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