Criminal investigations and prosecutions can be a devastating collateral consequence of commercial litigation. Opponents in civil litigation are uniquely positioned to make trouble for a company whose agents engaged in criminal conduct. Referrals to the Federal Bureau of Investigation (FBI) and U.S. Attorney’s Office can wreak havoc on an opposing party. Documents obtained in discovery and testimony obtained through depositions almost always can be turned over to law enforcement authorities, and that evidence can provide the government with a virtual road map for a criminal investigation. This is true even where the putative crime has nothing to do with the subject of the litigation.
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