Employee-witnesses in internal investigations typically face two main risks: the risks of criminal or civil liability arising out of the events that precipitated the investigation, and the risk of adverse employment consequences whether for the underlying conduct, or the failure or perceived failure to cooperate with the investigation. In some situations, a third risk may emerge—criminal liability for obstruction of justice due to the employee’s conduct in the course of the investigation.
Potential liability for obstruction arises in several ways. One possible scenario arises when the employee is interviewed by the lawyers conducting an internal investigation on behalf of the company. Those lawyers often will tell the employee at the start of the interview that they may share the information the employee provides with the government. An employee who is untruthful during such an interview—when the information is to be provided to the government—faces the risk of prosecution for obstruction of justice. Such prosecutions were brought in a few cases in the last 10 years, including most prominently the Computer Associates case.1
