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Parallel Criminal Investigations

By Jonathan B. New and Brian F. Allen

As law enforcement authorities have ramped up their investigations of businesses and financial institutions in recent years, companies engaged in civil litigation increasingly find themselves targets of related criminal investigations. Navigating through the competing demands of civil discovery and mounting a criminal defense poses unique challenges and potential landmines for corporate counsel. Among other considerations, confidential materials that would have otherwise been outside of the government's reach, in certain instances, may become subject to subpoena if they are produced in the course of civil discovery.

Almost three years after the Supreme Court declined to resolve the issue, tensions persist among federal courts over whether a civil protective order can in fact safeguard confidential corporate materials from compelled disclosure in a subsequent criminal proceeding. Faced with disparate standards, how litigants choose to conduct civil discovery is more vital than ever to safeguarding confidential materials and protecting a company's ability to defend against a criminal or regulatory investigation. Even before any investigation surfaces, corporate counsel must be cognizant of the risks involved, and pursue a litigation strategy that preserves the company's rights and defenses.

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