What are the best practices when it comes to the dreaded subject of corporate internal investigations? Bryan Daly, Christopher Hale and Melissa Eaves at Sheppard Mullin’s Corporate & Securities Law Blog have some tips for making the complex nature of internal reviews a little easier:
Outside or Inside Counsel?
At the outset of the investigation, the authors note, the first crucial decision is whether to rely on the in-house team or to outsource. One consideration is that “there is a much greater likelihood of maintaining the confidentiality” if outside counsel are employed. They suggest developing a plan defining the scope, objectives and anticipating possible problems and to make this decision from there.
Gathering and Organizing Documents
The preservation of potential evidence is paramount in an internal investigation. The company wants to be able to demonstrate to a court that documents were “preserved, collected and controlled,” note the authors. “Do Not Destroy” notices should be issued and documented.
There are a litany of things that could go wrong during a witness interview, but at the initial stage it’s imperative that the investigator is clear that he/she represents the company and not the employee. Any legal issues, such as attorney-client privilege and work product doctrines, must be explained in understandable terms, and the employee needs to know that any information obtained during the interview may be disclosed or used in the investigation.