The obstruction of justice charge filed against Volkswagen this week contains an important warning for attorneys representing companies under investigation. As described in the factual basis to the company’s plea agreement, when the investigation began, an in-house lawyer told different groups of VW employees that a litigation hold was coming. The employees interpreted the attorney’s statements to suggest that they destroy evidence related to the diesel emissions issues. They then contacted other employees, and employees at other companies who had relevant documents, and told them that “there had been a recommendation from a VW attorney to delete documents related to the U.S. emissions issues.” The attorney is listed as an unindicted co-conspirator in the case.
The case stands as a stark reminder of how careful we have to be when speaking to clients or their employees. While the plea agreement does not specify what the attorney said, assuming this was a case of carelessness by the attorney rather than criminal obstruction (as the plea agreement can be read to suggest), we should all take note. The best case interpretation of the facts in the plea agreement is that the attorney did not clearly and accurately define the employees’ obligations and the potential ramifications of destroying evidence, and the employees misinterpreted the warnings of a coming litigation hold. The attorney presumably did not explain that deleting documents relevant to a criminal investigation is a separate offense.
Remember that clients and their employees are usually panicking as a government investigation envelops them. They look to their attorneys to define the rules of a game they’ve likely never played. Clear warnings and instructions are critical in those moments. Any ambiguities in these areas – is it okay to delete documents? is it okay to tell employees not to talk to the FBI? – leave them open to criminal charges beyond the scope of the original subject of the investigation. It’s often up to us to protect them from themselves.