When a company is confronted with the need to conduct an internal investigation into allegations of possible wrongdoing, it’s essential to respond deliberately and thoughtfully in the execution of the investigation.
While no two corporate internal investigations are the same, there is a certain pattern to most investigations and certain recurring best practices that can be leveraged by in-house and outside counsel. We’ve been collecting some of these insights from experts in the field and sharing them in a four-part series of blog posts.
In Part One of our series, we addressed the importance of establishing a smart investigation strategy. In Part Two, we explored how to build a smart investigation team. Today, we focus the third post of our series on how to conduct smart investigation interviews.
“Legal experts advise that an approach to witness interviews in an internal investigation should be carefully planned in advance of any actual conversations,” said Steve Ashbacher, vice president of litigation solutions with the LexisNexis software and technology business. “This plan should address who specifically is to be interviewed, the process that will be used to provide advance notice to managers or supervisors about the interviews, the sequence of the witness interviews and the techniques that will be used to control the interviews.”
Here are a few key considerations suggested by lawyers with experience conducting investigation interviews:
- Before or After document review?
Once the list of interview subjects is finalized, it’s important to determine whether to interview them before or after document review. If the investigation is moving quickly, there may not be enough time to review documents prior to the interview. In other cases, counsel may prefer to enter the interview with complete knowledge of the documents that were uncovered.
- Attorney-Client privilege
The privilege must be carefully protected during an interview and the witness must be informed of the so-called corporate Miranda warning. This is the notice an in-house attorney gives a company employee to inform him/her that the attorney represents only the company and not the employee as an individual. Known as an “Upjohn Warning” due to a U.S. Supreme Court decision related to the preservation of attorney-client privilege in conversations with employees, you need to make it clear that: the attorney-client privilege over communications between company counsel and employees belongs solely to, and is controlled by, the company; and the company may choose to waive this privilege and disclose what the employee says to in-house counsel to a government agency or other third party. To see a sample Upjohn warning, click here.
- Building the interview script
A strategy should be put in place for which questions will be asked and how aggressively each witness will be questioned. For example: What did you see or hear? When did this occur? Describe the alleged behavior in the workplace. What did the complainant tell you? When did they tell you this? Do you know of any other relevant information? Are there other persons who have relevant information?
- Documenting the conversation
During each interview, careful notes must be taken to ensure integrity, confidentiality and accurate reporting of what was shared by the witness. Since the delicate nature of many investigations will preclude recording of the interview, there should always be more than one person in the room — and someone needs to be made responsible for taking thorough notes and writing up a report of the interview. All relevant information must be documented, as well as the specific time, place and individuals present for the interview.
For the final post in this series, we’ll tackle the importance of performing smart investigation analysis by leveraging the power of technology tools to collect, identify and organize the evidence uncovered by the investigation.
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