A Search of Your Company

By Dr. Julius Hagen, Attorney at Law

The First Steps During a Company Search

A company search puts day-to-day operations and the criminal defence under pressure at the same time. In the first few minutes, the company should secure the search warrant in full, establish who is leading the operation and alert the designated internal and external contacts. The search may begin before in-house counsel or external defence counsel arrive. The company’s first response must therefore work under time pressure.

The search warrant is the first legal point of reference. It should show who is suspected, which premises may be searched and what objects or data are being sought. Where several companies occupy the same building, that distinction may be decisive. If premises, documents or data appear to fall outside the scope of the warrant, the company should raise this expressly with the lead officer and record it in the search record.

The aim on the day of the search is generally not to win an argument at the reception desk. The priority is to control the scope of the measure, avoid unnecessary voluntary cooperation, document interventions and prepare the defence for the subsequent review of the file and evidence.

Which premises may be searched?

The search warrant sets out what may be searched and where. Section 102 of the German Code of Criminal Procedure concerns searches of a suspect’s premises. If premises belonging to other persons or companies are to be searched, section 103 generally applies. There must be specific facts suggesting that the item or trace sought is located there. A judge generally orders the search. Only in cases of urgency can the judicial order exceptionally be replaced by an order from the public prosecutor or the prosecutor’s investigative officers. Strict statutory requirements apply.

On the day of the search, the company should not discuss the allegation on the merits. It should first ensure that the scope of the measure is recorded: Which premises, documents, data and companies are covered by the warrant? A search for documents relating to a particular project does not automatically authorise access to every business area or to other group companies.

Securing documents and data

Investigators may enter the premises covered by the warrant and search for evidence. Papers and other objects may be taken for review or preservation where an on-site review cannot reasonably be completed. Section 110 governs the review of papers and electronic storage media.

Documents should not be voluntarily handed over or explained where the legal basis and scope remain unclear. Employees may identify where requested material is located but should not provide spontaneous explanations of its contents. Any objection to seizure should be recorded in the inventory. Keep a copy of the inventory and an internal record of the measure.

Cloud, servers and group-wide IT systems

Electronic data can significantly expand the practical reach of a search. Under section 110(3), the review may in certain circumstances extend to physically separate storage media accessible from a device found at the premises if this is necessary to prevent loss of evidence. IT staff should document access and should not implement far-reaching instructions without internal coordination.

The location of cloud data should be clarified. Data stored abroad may raise additional legal questions. The location, access path and technical process should therefore be documented; a broad voluntary release of cloud or group-wide systems should not be granted without legal review.

Employees, Legal and management

The warrant is not a general authorisation to conduct spontaneous interviews at the company. Investigators may nevertheless approach employees and record informal comments. Suspects have a right to remain silent. Witnesses may have a lawyer present under section 68b.

Management, Legal/Compliance and IT should not provide parallel accounts of the facts. Centralised communication helps avoid contradictions and separates documented facts from later assessments. After the measure, affected departments should record what happened promptly, without altering documents or data.

Follow-up and judicial review

The company should request written confirmation of the search and an inventory of items taken into custody or seized. These documents provide the basis for reviewing whether the warrant was observed and whether the subsequent review should be challenged.

The next step is to turn the actual course of the search into a reliable basis for the defence. The record should identify in particular what was sought, what was found, which data was copied and whether the warrant may have been exceeded.