In previous articles in our series of a “Dozen dos and don’ts of corporate internal investigations,” we discussed the importance of taking a measured approach to each internal investigation. We have discussed multiple aspects of how critical witness interviews are to a successful investigation. Thorough preparation prior to interviewing a witness and diligence in exhausting a witness’s knowledge of key facts is paramount. In this article, we cover the importance of properly memorializing witness interviews as well as maintaining confidentiality.
9. Do Be a Historian
In our last article, we discussed how counsel should strive to staff interviews with two attorneys—a questioner and a note taker. Because you may only have one chance to conduct an interview of a given witness, it is essential that copious notes be taken and that accurate memoranda of interviews get drafted. “Do be a historian” —in other words, don’t gloss over any detail as the importance of what might seem like insignificant facts may not come to light until the investigation is close to completion. Accurate interview memoranda will also allow counsel to place facts into context after all interviews have been conducted. For this reason, best practice is to draft interview memoranda shortly after the interview is completed while the issues discussed are still fresh in the attorney’s mind. Reliance on accurate interview memoranda will also make counsel’s job much easier when it comes time to providing either an oral or written report to the client.
At the same time, counsel must take steps to preserve the attorney-client and work product privileges. Interviews should not be merely transcribed; rather, inclusion of counsel’s mental impressions will bring notes and memoranda within the protection of the attorney-client and work product privileges. See, e.g., Coito v. Superior Court, (June 25, 2012), addressing the application of the work product doctrine to witness statements obtained during an interview conducted by counsel.
10. Don’t Be a Sieve
During an investigation, counsel must disclose information only “as needed” in order to accomplish the client’s goals. Confidentiality is paramount. When considering disseminating information gathered during an investigation, counsel must understand that facts are likely to evolve as the investigation progresses. Therefore, maintaining confidentiality minimizes the risk of spreading incorrect information. At the same time, counsel should avoid making premature conclusions and resist corporate pressure to take action based on incomplete information.
Maintaining confidentiality will also help counsel avoid waiving privilege. Counsel conducting the investigation should advise their client about the risks of waiving privilege by unnecessarily providing confidential information to company employees or directors who may be targeted in subsequent litigation or an enforcement action. Likewise, due to the risk of waiver, it is essential that counsel consult with their client prior to providing information to outside auditors or regulators. When in doubt, counsel should default to maintaining the confidentiality of facts gathered during the investigation.
Our next segment will address the final two of our “Dozen dos and don’ts of internal investigations”—“Do be prepared when 60 Minutes calls” and “Don’t report before you are ready.”