ADVICE CENTER
23 October 2015

Search Readiness and Response: Preparing to be Searched Practice Guide

ML
McMillan LLP

Contributor

McMillan is a leading business law firm serving public, private and not-for-profit clients across key industries in Canada, the United States and internationally. With recognized expertise and acknowledged leadership in major business sectors, we provide solutions-oriented legal advice through our offices in Vancouver, Calgary, Toronto, Ottawa, Montréal and Hong Kong. Our firm values – respect, teamwork, commitment, client service and professional excellence – are at the heart of McMillan’s commitment to serve our clients, our local communities and the legal profession.
An organization should ensure that the personnel who are likely to have direct initial contact with investigators or inspectors are prepared for the initial interactions at the beginning of a search or inspection.
Canada Legal Risk Management

An organization should ensure that the personnel who are likely to have direct initial contact with investigators or inspectors are prepared for the initial interactions at the beginning of a search or inspection. The Preparing to be Searched checklists will assist an organization in handling a search or inspection should such an event occur.

Preparing to be Searched — Checklist for Persons in Authority
(Facility Managers, Legal Counsel, etc.)

  1. Examine the warrant or other authorization that the officers provide as the basis for the search or inspection
  2. Contact legal counsel and request a reasonable delay in the start of the search or inspection until legal counsel arrives
  3. Confirm that the organization will allow the search or inspection to proceed but that the organization is not waiving any of its legal rights
  4. Ensure that a privilege claim is made in respect of any documents that may be subject to solicitor-client or other legal privileges
  5. Monitor proceedings and make notes
  6. Do not impede the search
  7. Do not remove, destroy or delete material
  8. Maintain the right to silence if available (some inspection regimes may require employees to answer questions)

Preparing to be Searched — Checklist for Receptionist / Frontline Personnel

  1. Remain calm and polite
  2. Ask the officers to produce identification
  3. Ask the lead officer to delay the search or inspection until a person in authority arrives
  4. Contact a relevant person in authority immediately using a hierarchical list of management and law department personnel (including cell phone numbers)
  5. Arrange for a boardroom where the officers can wait pending the arrival of a person in authority and/or legal counsel
  6. Do not impede the search or inspection if the officers choose to proceed
  7. Do not remove, destroy or delete any material

Preparing to be Searched — Checklist for IT Search Readiness

  1. Identify an IT Manager who will provide assistance with respect to computer searches
  2. Create a segregated area for privileged documents
  3. Determine what systems / servers outside Canada can be accessed from within Canada, and determine who will control and be given access. Consider restricting access to material on non-Canadian servers to only those materials that the Canadian business needs for its operations.
  4. Ensure that there is an up-to-date inventory of all company-owned electronic devices that are in the possession of employees (laptops, cell phones, etc.) (Note that during a search, the company will be required to provide passwords, if demanded, but should specify that it is not waiving any of its legal rights in respect of material being accessed or servers outside the jurisdiction).
  5. Ensure that electronic devices of departing employees are dealt with in accordance with the company’s document retention program
  6. Ensure that back-up tapes or other archival storage media are maintained in accordance with the company’s document retention program
Take Note
This document is not intended to create an attorney-client relationship. You should not act or rely on any information in this document without first seeking legal advice. This material is intended for general information purposes only and does not constitute legal advice. If you have any specific questions on any legal matter, you should consult a professional legal services provider.

Contributor

McMillan is a leading business law firm serving public, private and not-for-profit clients across key industries in Canada, the United States and internationally. With recognized expertise and acknowledged leadership in major business sectors, we provide solutions-oriented legal advice through our offices in Vancouver, Calgary, Toronto, Ottawa, Montréal and Hong Kong. Our firm values – respect, teamwork, commitment, client service and professional excellence – are at the heart of McMillan’s commitment to serve our clients, our local communities and the legal profession.

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