Dawn Raids

Dawn Raids

Understanding the rights and cautions!

Vaibhav S. Bakhare1

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 sunriseNo 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”)

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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 5


• 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

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• 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

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• 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

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• 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.

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• 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.

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b. 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)

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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

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• 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

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c. Check that the answer would not be in breach of the company’s right against self-incrimination (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

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• 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

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• 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

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THANK YOU..!

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Documents

Dawn Raids