Planning and conducting the investigation
Once you decide an investigation is necessary – what’s next? In this post, we will discuss planning and conducting the investigation.
Planning the investigation
The “5Ps” apply here: Proper Planning Prevents Poor Performance. A plan streamlines the investigation by giving it focus. It results in a thorough investigation, completed swiftly, and thereby creating the least disruption for the institution.
A good plan begins with understanding the allegation – who did what to whom? If it is a written complaint, read the complaint, then read it again. If you were to accept everything in the complaint as true, identify what witnesses you would need to interview to confirm the facts and what documents would support the allegation. Then, look at the complaint from the other perspective, are there any other witnesses you would want to interview or documents you would want to review to disprove the allegation. If electronic documents will be reviewed, contact IT or the person responsible to ensure all the documents are preserved. Find out what back-up or archived materials might be available to rebuild evidence that might otherwise have been destroyed.
Do you need others on your team? Is the investigation so large or is speed so necessary to require multiple investigators? Do you need to bring in a forensic accountant or computer examiner?
With those thoughts in mind, develop a written plan for conducting the investigation. Begin with the allegation and the goal of the investigation (what are you trying to determine). Then identify how documentary evidence will be gathered and in what order, when do you want to interview witnesses, what order should they be interviewed, and what questions should be asked. The written plan is necessary, but it cannot be inflexible. Examine the plan regularly to determine if the order of activities should be rearranged.
There is no one-size-fits-all guide for how often to reexamine. A sole investigator with a plan to interview 3 witnesses and review emails from 2 sources may reevaluate the plan after each task is completed to ensure the order originally planned is still best. However reevaluation after every task is not appropriate for a large scope examine with multiple full-time investigators interviewing multiple witnesses and reviewing documents in a given day.
Conducting the internal investigation
Once the plan is in place, the fun begins. Generally the first step is to complete the document review – learn all you can before you start interviewing witnesses. There may be exceptions that require interviews before completing a document review, such as when you can deter or prevent conduct or when a witness is moving and won’t be available, but this should be exception and not the rule. Of course if the complaint came to you verbally, the source of the complaint must be interviewed first to understand the allegations. Document review first applies to cases in which you have a written complaint.
Typically, you will want to review the complaint (again), company policies, personnel files, and to the extent applicable, emails, text messages, and records of phone calls. Social media and open source searches may provide additional background information on the people with potential knowledge of the allegation.
It’s now time to interview. Generally you will interview the source of the complaint first, key witnesses, followed by the target. Occasionally you may interview the target immediately after you interview the source of the complaint.
Before any interview, prepare a chronology of events and an outline of questions for the witnesses, including:
- The facts of the complaint and how the witness learned of the allegation;
- Personal knowledge of relevant facts (including the who, what, when, where, why, and how);
- Identification of key witnesses including background and relationship to the target and accused;
- Identification of key documents; and
- Identification of relevant policies, how they are communicated to the participants, and whether they are followed and/or enforced.
A few thoughts for during the interviews. At the outset, explain the reason for the interview and provide the appropriate disclosures. Particularly, notify the witnesses that you are investigating on behalf of the company. For attorneys, the Rules of Professional Conduct mandate that the investigator disclose to company personnel that the institution is the client. See Purdue University v. Wartell, 5 N.E.3d 797, 808-09 (Ind. Ct. App. 2014) (citing Ind. Professional Conduct Rule 1.13(f)).
Team up on interviews. Even if you are conducting the investigation alone, have someone from personnel or another impartial manager observe. A second person may assist in taking notes and also serves as a witness later if there is any confusion or denial of what was said in the interview.
Let the interviewees know that you will maintain confidentiality to the greatest extent possible, but do not promise confidentiality. You will only share the information with management or others on a limited need to know basis. You do not need to tell the interviewee what other witnesses had to say. Never discuss opinions or conclusions with anyone while the investigation is pending.
Be clear that the institution takes the complaint seriously and intends to conduct a complete and impartial investigation. Remind each interviewee that the company has a legal obligation to investigate.
Of course, remain neutral. You are there to gather facts to protect the institution. Remain focused on the allegations you are investigating, and keep the interview moving forward according to the plan. However, while the outline is important and serves as a guide, do not follow your outline rigidly. Listen to the witness and adjust questions as necessary based on the responses you receive. Your questions should be open-ended and non-suggestive.
Prepare the witnesses for potential follow-up interviews, often facts learned in later interviews require that early interviewees be re-interviewed.
After the interview, consider how the interview corroborated or disputed information previously received. Consider how later interviews may need to be adjusted and how prior interviewees may need to be re-interviewed.
No article can provide a definitive guide for how to plan or conduct an internal investigation. For a thorough discussion of these issues, or if you have other questions on how to best protect your company, please contact Bill Bock or Steve Runyan of our Investigation and Crisis Management Team, or one of our attorney’s here. It would be our pleasure to assist you.
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