Wait for your legal counsel
Ask the senior investigating official to wait until your legal counsel – representatives of the Legal Department or a member of the Noerr Dawn Raid Team – has arrived.
The officials are often willing to wait for a certain time if they are allowed to move freely in the meantime and can already carry out measures to secure evidence, such as sealing offices or filing cabinets and they are assured that no documents will be secreted away or hidden. Please note that the officials are not in principle obliged to meet this request and to wait.
If the officials are willing to wait, ask them to wait in a separate room, where they do not have any direct access to physical or electronic documents and cannot overhear any discussions.
Determining the subject of the inspection
Read the decision of the authority/court on the basis of which the officials wish to carry out the search in detail and check the following points:
- Which enterprise, operating divisions or business units of your company are affected?
- What period does the inspection refer to?
- What offence is the company accused of?
- How long is the search intended to last?
If the decision of the official/court does not contain any such information, request appropriate information from the senior investigating official. Ask the senior investigating official how the officials wish to proceed with the search. Request the officials to treat business secrets confidentially. Please make a note of all answers the officials give to your questions.
Shadowing – Accompanying the officials
You may and should accompany the officials during the search.
If possible, ensure that every official or every search team is accompanied by an employee of your company. This is not only in the interest of the company, but also facilitates a smooth and rapid search for the officials because they are being accompanied by people who can answer questions.
If possible at least two people should accompany the officials:
- Manager/executive (e.g. for questions regarding the company or its business divisions);
- Assistant (for taking notes and providing support).
Give the employees the following instructions:
- Note down all questions the officials ask and your answers to these.
- Make a note of which rooms are accessed and which documents are inspected.
- Make, if possible, at least two copies of each document which the officials copy or seize: one copy for your company and an additional copy for your legal counsel.
Ensure that sufficient IT department employees are available to provide the officials with quick access to the desired files and make them copies of the data storage media (e.g. copies of USB sticks and hard drives).
Room for inspecting documents
Offer the officials the use of a separate room to which all requested documents can be brought for inspection.
If the officials agree to this, ensure that the room has at least one photocopier. Make a note of which documents are requested. If documents or computers are seized, ask the officials for permission to make copies of the documents or hard drives before these are seized.
Please note that the officials are not obliged to accept the offer of separate inspection room.
Inform all employees at your company location that a search is being carried out by the antitrust authorities. Send out a circular in this regard by email or at smaller sites inform employees by loudspeaker announcement. At larger sites please inform the heads of the individual departments and ask these to inform their department employees accordingly.
Emphasise the following in such internal notification:
- All employees must in principle cooperate with the officials.
- Questions regarding personal information (first name, last name and maiden name, place and date of birth, marital status, place of residence/domicile and nationality) have to be answered.
- Questions regarding the company, it business activities and specific circumstances are to be referred by employees to their line managers.
- Employees may not under any circumstances destroy or hide documents, or delete any emails.
- Employees must treat the fact that a search is being carried out confidential and must not in particular allow any information to be disclosed externally (e.g. to customers, competitors, journalists, family members or other third parties).