Dawn Raids

Understanding the rights and cautions!

Vaibhav S. Bakhare
1

Raids..What's that?
Visit of Officials authorized by competent authority to seek Information A group of officials or a single person may be authorized Can only begin after sunrise No rights of physical intrusion

Powers of Investigators
To enter your premises using reasonable force; seal the premises and furniture; Search for and review documents considered relevant at the place where they are kept; Take copies of documents; Hold oral hearing; Require electronic information to be produced in hard or soft copy to be taken away by them

Investigators DO NOT have power to:

Search without the presence of at least two independent witnesses; Use of force against any person; Examine and/or copy or take originals of documents which are legally privileged; Take away documents without securing them; Require answers which might involve a confession (so-called right against self incrimination )

What to do in case of a Dawn Raid

Ask the Investigators to show authorisation from the Megistrate/Police Commissioner/(authority) and identify themselves (take a written note of their names) Ask any persons accompanying them (such as a technical expert) to show identification and due authorisation Request for calling two independent witnesses of your choice since confidential information may be involved Immediately alert key internal staff, Legal Counsel, and the people the Investigators have asked to see

What to do in case of a Dawn Raid

Establish professional rapport with the Investigators Co-operate actively throughout the inspection Do not make any attempt to destroy or conceal documents, or to mislead Investigators Request them to wear badges clearly denoting that they are officials from ? Speak to IT staff to preserve back-up tapes
6

What to do in case of a Dawn Raid

Read the Investigators mandate carefully in order to determine the precise scope of the investigation You may sign the certified copy of the legal documents and an acknowledgement of notification of these decisions, since this merely certifies delivery. It does not imply submission to the investigation

What to do in case of a Dawn Raid

Set up a key team to manage the dawn raid and minimise disruption to the business. Identify both an IT specialist and an administrator to be responsible for copying documents. Alert senior management to the investigation without causing a panic Do not conduct in a manner which could be regarded as obstructing the investigation

What to do in case of a Dawn Raid

Request the Investigators to wait until the external lawyers arrive (which they may not necessarily agree to) Ask the Investigators to explain what they want to achieve, who they wish to speak to and agree in advance the administrative arrangements and the procedure for resolving any disputes The Investigators may divide up their work, so ensure that each of them is accompanied to the office in which the files he wishes to see are located.
9

What to do in case of a Dawn Raid

Ensure that each member of your staff accompanying the Investigators has a copy of the mandate describing the scope of the inspection If the Investigators ask to see certain documents or want to take copies or originals of documents: a. Before the Investigator reads the documents, check that they are not legally privileged. Point out that they are confidential. If the Investigator is not satisfied with your arguments, seek legal advice.

10

What to do in case of a Dawn Raid

Check that the documents are relevant (i.e. within the scope of the investigation: subject and period). If the investigator is not satisfied with your arguments, seek legal advice. c. Ensure that 3 copies are made of each document (one for the Investigators, one for the company and one for legal counsel)
b.
11

What to do in case of a Dawn Raid

d. If possible, establish a general understanding that the Investigators consider all documents as confidential and therefore do not allow third parties access to these documents in subsequent proceedings. e. Alternatively, mark all the most sensitive ones as confidential/ business secrets and seek confidentiality under section 57 of the Competition Act, 2002
12

What to do in case of a Dawn Raid

you may insist on withholding the legally privileged document from the Investigators If the Investigators ask for oral explanations of facts or documents: a. Check that the questions relate to documents that are produced or to the subject-matter of the investigation b. Answer the questions precisely and concisely. Do not engage in an expansive discussion. If you do not know the answer, say so
13

What to do in case of a Dawn Raid

c. Check that the answer would not be in breach of the company s right against selfincrimination (i.e. would not involve a confession ) d. Ensure that all questions and answers are faithfully recorded e. The company has the right to a copy of the Investigators record of oral explanations, which may not be provided on the spot

14

What to do in case of a Dawn Raid

If IT experts accompany the Investogator a. secure the latest back-up tapes b. ensure that each document that they propose to take away is individually checked for relevance and privilege c. best practice is to agree with the Investigators that each electronic document that they wish to take away is printed off in hard copy unless such document is too bulky to be printed off in a reasonable time
15

What to do in case of a Dawn Raid

At the end of an investigation, the Investigators must provide the signed inventory of documents taken by the Investigators (Panchnama) and copies of the records of oral examinations If copies of oral examinations have not been provided, the Company must seek them from the Competition Commission of India at the earliest opportunity
16

THANK YOU..!

17