Conducting Effective Internal Investigations. From Workplace Harassment to Criminal Conduct and Everything in Between

Transcription

1 Conducting Effective Internal Investigations From Workplace Harassment to Criminal Conduct and Everything in Between

2 Presenters Christopher G. Keim Partner, Management Committee Chris is a trial lawyer and former prosecutor who focuses on product liability claims, business disputes, employment litigation, and corporate investigations. He has extensive first-chair litigation experience in successfully defending businesses throughout the United States. Kelley J. Barnett Partner Kelley s practice focuses on product liability claims, commercial litigation and corporate investigations. In addition to being a former prosecutor, she has represented clients ranging from local small businesses to Fortune 500 companies across the United States with more than ninety-five jury and bench trials as firstchair.

3 Effective Internal Investigations Overview When should you initiate an internal investigation? What are the best practices for conducting an internal investigation? What should you do to keep your internal investigation privileged? What are common pitfalls and how can you avoid them?

4 When Should You Conduct An Internal Investigation?

5 Best Practices Initiate Investigation Don t summarily dismiss even seemingly minor issues Common triggering events: Employee or whistleblower complaints Complaint or viable threat of litigation by third party Internal/external auditor findings Regulatory enforcement Allegations of financial misconduct Government subpoena or search warrant Workplace accident or safety issue Misconduct by employees or corporate officers Ethical issues Legal duty Media attention

6 Best Practices Benefits of An Effective Investigation Demonstrates good-faith response May minimize potential penalties or consequences Will help the company take appropriate remedial action if warranted

7 Best Practices Risks of Conducting a Poor Investigation or No Investigation At All Sends a negative message to employees and the public May increase scrutiny by government investigators and courts Increased risk of losing important evidence May damage reputation Potential liability if alleged conduct continues

8 Best Practices What are the best practices for conducting an internal investigation?

9 Best Practices Develop a Plan 1. Develop An Investigation Plan Define purpose and scope (and re-evaluate constantly) Identify the triggering event Identify all potential sources of information Identify investigative team Prepare list of employees to interview Determine whether you want to keep the investigation privileged If you want to keep it privileged, work with counsel

10 Best Practices Develop a Plan Inside or outside counsel? Hire outside counsel if: Risk of criminal or civil exposure or regulatory noncompliance Government subpoena, warrant or inquiry Allegations of widespread corporate misconduct Alleged misconduct by company officers, senior management or board members You don t have in-house counsel and want to keep it privileged You need additional subject matter expertise

11 Best Practices Collect Documents 2. Collect and Retain Documents Identify all sources of potentially relevant documents May include third-party sources or former employees Implement a do not destroy notice or litigation hold Send notice to IT department Send notice to anyone who might have relevant information Periodically confirm document retention Suspend routine document destruction practices

12 Best Practices Collect Documents 2. Collect and Retain Documents - cont. Conduct Interviews: s Invoices Time cards or schedules Financial records Notes Travel records Receipts Personal files Incident reports Written complaints Policies Supplier records Video footage

13 Best Practices Who Should Conduct Interviews? (Hint: Not This Guy)

14 Best Practices Who Should Conduct Interviews? (And Not Her)

15 Best Practices - Interviews 3. Preparing for Interviews Who should conduct? Good interpersonal skills No potential witnesses No negative history with potential witnesses Take the circumstances into account Sensitive allegations Avoid creating the appearance of impropriety

16 Best Practices - Interviews 3. Preparing for Interviews cont. In person interviews are preferred Schedule in advance (don t ambush) Never conduct interviews alone No more than two people in room with witness Avoid disruption when possible

17 Best Practices - Interviews 3. Preparing for Interviews cont. Gather and review key documents to show and discuss with interviewee Prepare an outline of issues to cover (don t wing it ) Review background information of interviewee E.g., prior complaints; relationship to other witnesses, alleged wrongdoer(s), alleged victim(s); prior disciplinary history and job performance of interviewee

18 Best Practices - Interviews 3. Preparing for Interviews cont. Anticipate questions and prepare responses Do I need a lawyer? Do I have to cooperate? Who will you tell? Am I in trouble? Will I be fired? Can I read your notes?

19 Best Practices - Interviews 4. Conducting Interviews Some Tips: Develop rapport before diving in Explain purpose of investigation and interview Give Upjohn warnings (when warranted) Use Non-Leading Questions Avoid the Good cop, bad cop routine

20 Best Practices - Interviews 4. Conducting Interviews Some Tips: Exhaust interviewee s memory before showing documents Ask interviewee about other potential sources of information Ask interviewee if he/she has talked to anyone about the subject of the investigation Don t be misleading or untruthful No off the record comments

21 Best Practices - Interviews 5. Concluding the Interview Ask the catchall question Ask if they have any questions Conclude with final reminders Preserve documents Don t discuss (if investigative plan calls for confidentiality) Acknowledge Upjohn warnings in writing (where applicable)

22 Best Practices - Interviews 6. Written Summary of Interview Prepare immediately Date, time, location, duration Identify participants Scheduling process Information conveyed to and by witness Documents shown to and provided by witness Inconsistencies or consistencies with documents and other evidence Demeanor of witness Written acknowledgment of Upjohn warnings (where applicable)

23 Best Practices - Final Report 7. Form of Report Verbal or written? Factors to Consider: Evaluate risk of unwanted disclosure Mandatory disclosure requirements Routine vs. higher risk matters Rule of thumb: if there is no legal obligation, benefit or strategic reason to disclose, keep it verbal

24 Best Practices - Final Report 8. Content of Written Report Identify process and steps taken to investigate Identify facts Consider conclusions and recommendations Identify non-compliance with policies or procedures

25 Best Practices 9. Documenting Company s Response Even if you don t prepare a written report, document personnel decisions, policy changes, and other remedial or corrective actions taken in response to results of investigation

26 Keeping It Privileged What should you do to keep an internal investigation privileged?

27 Keeping It Privileged How to Keep It Privileged Involve counsel immediately Counsel must conduct or at least be involved in all stages of the investigation Make it clear to all involved that the investigation is being conducted at the direction of counsel Mark documents as attorney-client privileged or attorney work-product Limit distribution of investigative materials and information on a need to know basis

28 Keeping It Privileged How to Keep It Privileged cont. Direct all s, memos and reports to attorney Provide Upjohn warnings during interviews This interview is being conducted at the direction of counsel for the purpose of providing legal advice to the company; Legal counsel represents the company, not you; This conversation is privileged, which means you cannot discuss this interview with anyone (except your counsel); The privilege belongs to the company, which means the company can and may decide to disclose the information to others, including law enforcement.

29 Pitfalls To Avoid

30 Pitfalls To Avoid What are common pitfalls and how can you avoid them?

31 Pitfalls To Avoid Don t wait to start investigation Don t forget to promptly preserve records Don t pick the wrong people to conduct the investigation and interviews Don t harass interviewees Don t tell interviewees not to cooperate with government investigators Don t forget to follow-up on important information and leads Don t forget Upjohn warnings (when warranted) Don t promise confidentiality

32 Presenter Contact Information For more information or to arrange a complementary, in-depth presentation regarding this webinar or other corporate investigation issues, please contact us at: Chris Keim ckeim@frantzward.com (216) Kelley Barnett kbarnett@frantzward.com (216)