This is the first in a series of articles addressing the real world challenges of conducting internal investigations.
They all start differently. Sometimes an employee blows the whistle regarding a potentially problematic internal practice. Other times, a subpoena arrives from a government agency or the FBI arrives unannounced. No matter how it starts, it is time to face reality: You are about to begin an internal investigation.
Here are some practical steps you can take to get to the truth in a timely, cost-effective fashion:
1. Preserve, preserve, preserve. Whether by automatic deletion by IT software or by inadvertent or purposeful destruction by employees, absent some affirmative steps by the investigators, data relevant to your investigation may be lost forever—such a problem can have an adverse impact on the investigation and its resolution. Consequently, you must take necessary steps to preserve the relevant data, such as issuing a document hold letter that instructs employees to preserve electronic and paper documents during the investigation, utilizing technologies to prevent electronic data destruction or mirror imaging the hard drives of key custodians.
2. Map out a game plan. Clearly identify the scope of your investigation. What are your core issues? Who are the key witnesses? What is the relevant timeframe? Reduce your game plan to writing and review it frequently over the course of your work (revising as appropriate) to maintain focus. And if you are planning to share your findings with the government, agree in advance with the government agency about the scope of your review and put your agreement in writing.
3. Empower your investigative team. Great minds do not always think alike … and that is a good thing. Build a team that is intellectually curious and unbiased as to outcome. This is no time for “yes men.” Encourage all team members to voice their observations, concerns and opinions in the search for truth.
4. Think strategically about your interviews. Be prepared in advance of your interviews—sometimes you only get one bite at the apple. Deploy the right team member to conduct each interview, taking into consideration the temperament and personal characteristics of the witness, the skill and expertise of the interviewer and the subject matters to be covered. The lawyer conducting the interview cannot be responsible for taking notes (unless of course you want incomplete notes and confusion at the end of that process), so send someone to assist the interviewer and to take notes. Issue Upjohn warnings and, where appropriate, provide separate counsel to employee witnesses. After the interview, both participants from the investigative team should be involved in preparing the interview memorandum.
5. Safeguard the privilege. The attorney client privilege is in constant jeopardy throughout the investigation process. Take pains to protect the privilege, including restricting the number of people who are knowledgeable of your work, limiting disclosures to third parties and staying current on the ever-evolving state of the law. In an abundance of caution, draft all of your communications and other privileged documents as if they are going to end up on the cover of the newspaper because occasionally, they will.
6. Maintain your objectivity. Perhaps most importantly, you and your investigation team must maintain your objectivity at all times. Searching for evidence to support a preordained conclusion is a fool’s errand.
So these are the basic “nuts and bolts” of conducting an internal investigation. Over the months to come, we will dive more deeply into a number of these topics to offer additional practical advice on how to navigate the choppy waters of conducting investigations.