How to Effectively Conduct an Internal Investigation

Broadcast Date: Wednesday, January 20, 2021
from 3:00 pm to 4:00 pm (ET)

Overview:

When conducting internal investigations, companies face a myriad of complex and sensitive issues, including confidentiality, attorney-client privilege, and conflicts of interest. Adding to these issues are the new and evolving challenges arising from the COVID-19 pandemic. With internal investigations being conducted remotely, evidence collections and witness interviews have become more difficult to arrange.

Now more than ever, businesses and their counsel need to be cognizant of the most recent issues that may affect their investigation processes. If done properly, internal investigations can be a powerful tool in identifying and resolving issues so liability can be minimized.

In a LIVE Webcast, corporate lawyers DanaLynn T. Colao (Saiber LLC) and Adam B. Schwartz (Shearman & Sterling) will discuss the significant and latest issues which practitioners need to know in conducting effective internal investigations. Speakers, among other things, will also offer the best preparation tips and risk mitigation strategies.

Key topics include:

Conducting Internal Investigations: Key Factors to Consider
Recent Issues and Trends
Addressing Potentials and Pitfalls
Best Practices and Strategies
What Lies Ahead

Learning Objectives:

Determine the key considerations and remedial measures in addressing workplace internal investigation issues
Identify the practical tips and strategies to conduct a comprehensive internal investigation

CREDIT

Credit:

Course Level:

Intermediate

Advance Preparation:

Print and review course materials

Method of Presentation:

On-demand Webcast (CLE); Group-Internet Based

Prerequisite:

General knowledge of internal investigations

Course Code:

149222

NASBA Field of Study:

Business Law – Technical

NY Category of CLE Credit:

Skills

Total Credit:

1.0 CLE

1.0 CPE (Not eligible for QAS (On-demand) CPE credits)

How to Claim CLE Credits Per State:

https://knowledgewebcasts.com/how-to-claim-cle-credits-per-state/

CLE State Requirements:

https://knowledgewebcasts.com/cle-state-requirements/

CPE State Requirements:

https://knowledgewebcasts.com/cpe-requirements/

SPEAKER PANEL

Speaker Panel:

DanaLynn T. Colao, Member
Saiber LLC

Over the past twenty years, DanaLynn Colao has developed a practice that focuses on employment and labor issues, contract matters, higher education, school law and professional liability. She counsels clients on a wide array of issues that arise in the workplace including new hires, medical leaves of absence, wage and hour claims, employment agreements, discrimination and harassment grievances, restrictive covenants and confidentiality agreements, termination decisions as well as separation agreements. DanaLynn has extensive experience conducting comprehensive investigations of a variety of matters for public and private clients, including inappropriate conduct in the workplace, ethical violations, conflicts of interest, policy violations and bullying. She also routinely prepares and updates employee handbooks and policies, and provides training to clients on various topics, including appropriate conduct in the workplace, harassment, discrimination, family leave and effective communication and management of employees.

She represents her clients in state and federal courts at the trial and appellate levels and before administrative tribunals, and has extensive experience providing counselling and litigation support in a variety of industries.

Adam B. Schwartz, Partner
Shearman & Sterling

Adam B. Schwartz is a partner in the firm’s Litigation practice. A former federal prosecutor and experienced first-chair trial lawyer, Adam’s practice focuses on the representation of multinational corporations, global financial institutions and individuals in criminal and civil regulatory matters, internal investigations, and in litigation in state and federal courts. Adam has represented companies and individuals in investigations led by the Department of Justice, U.S. Attorney’s Offices, the SEC, the CFTC, FINRA, state regulators, and Congress, and involving potential violations of the securities and antitrust laws, the FCPA, and the False Claims Act. In addition, Adam has extensive experience advising corporate entities on anti-corruption compliance matters.

Prior to entering private practice, Adam served as an Assistant U.S. Attorney in the U.S. Attorney’s Office for the Eastern District of Virginia and the U.S. Attorney’s Office for the District of Columbia. During his time at the U.S. Attorney’s Office, Adam tried more than 40 cases and argued numerous evidentiary motions and appeals. He also supervised the investigation, indictment, and trial of complex conspiracies, homicides, and matters involving public corruption and racketeering. While with the Department of Justice, he was awarded the Director’s Award and three special achievement awards. Adam was a law clerk for the Honorable Henry E. Hudson in the U.S. District Court for the Eastern District of Virginia, and an editor of the Virginia Law Review while at the University of Virginia School of Law.

Prior to law school, Adam served as an officer in the U.S. Navy and was deployed overseas twice between 2000 and 2004. He maintains an active pro bono practice representing fellow veterans in matters related to their veterans benefits.

AGENDA

Agenda:

DanaLynn T. Colao, Member

Saiber LLC

AND

Adam B. Schwartz, Partner

Shearman & Sterling

How to Effectively Conduct an Internal Investigation: Key Considerations During a Pandemic

The Purpose of an Internal Investigation
1. Appropriately investigate alleged misconduct by employees, business partners, contractors, customers, and other third parties to:
  - manage risk associated with the conduct (reputational, financial, litigation, other)
  - permit informed decision making by leadership in response
  - evaluate the need for employment action if warranted
  - and implement policy and control improvements to prevent future misconduct
2. The pandemic does not alleviate a board’s duty to effectively manage and supervise operations – The need to effectively conduct internal investigations continues, perhaps even increases, in the remote working environment.
Important Considerations when Addressing Complex Situations
1. Evaluate the Best Approach to Conduct a Comprehensive Investigation that will withstand scrutiny
  - What is the impetus for the investigation? (whistleblower, employee complaint or comment, regulatory inquiry, filing of litigation, etc.)
  - Should the investigation be conducted by an internal designee or an outside third party (lawyer vs. non-lawyer)?
2. Identify the Legal and Policy Implications of the Alleged Conduct
  - Does the conduct being investigated violate laws and/or company policy?
  - Does it bring potential reputational risk?
3. Consider Potential Conflicts of Interest that may arise During the Investigation
  - Are there competing interests that may complicate the investigation?
4. Determine which Communications may be protected by the Attorney Client Privilege and/or the Work Product Doctrine
  - Has legal action been threatened or is it likely based on the factual circumstances?
Keys to Conducting Effective Investigations
1. Identify an appropriate point of contact to oversee the Review
  - It is helpful to have one person assist the investigators with collecting documents, contacting witnesses, scheduling interviews, etc.
2. Defining the Scope of the Review
  - Establish a general objective for the investigation
  - Prepare for the possibility that the scope may evolve over the course of the investigation based on information revealed
3. Develop an Investigative Plan of action to Obtain a Broad Understanding of the Relevant Facts and Surrounding Circumstances
  - It is important to evaluate factual events in context
  - The past events and the culture of a company may be critical when evaluating the situation
  - Initial scoping interviews may be needed with the complainant/whistleblower or uninvolved internal experts
4. Preserve, Collect and Review all Relevant Documents and Data
  - Identify all potential resources of relevant information
  - Take affirmative steps to preserve and collect information in a discrete manner
  - Establish protocol for reviewing the information in an efficient manner that simultaneously recognizes privacy implications
  - Pandemic/remote working issues:
  - can preservation or collection occur remotely,
  - can personal devices be reviewed pursuant to corporate policy?
  - How do employees continue working if their at home devices (company issued or personal) need to be forensically collected?
5. Develop a Strategy for Conducting Witness Interviews
  1. Identify individuals with potential relevant knowledge
    - Always better to be over inclusive and to update the list as you proceed with the investigation.
  2. Determine the Order of Witness Interviews
    - Order may be critical in the collection of information
    - Want to avoid witnesses collaborating
  3. Where to Conduct Interviews
    - There are pros and cons to video conference interviews
    - May impact confidentiality because others could be present
    - Trend with witnesses secretly recording conversations
    - Sharing documents requires forethought. Approach may depend on the role of the witness in the investigation
  4. Preparation and Memorialization of Witness Interviews
    - Be knowledgeable about the witness and the role in the situation
    - Safeguarding the privilege
  5. The Dos and Don’ts when Interviewing a Witness
    - Be prepared in advance to respond if the witness refuses the interview or requests separate counsel
    - It is not appropriate to disclose the identity of the complainant and respondent
    - It is not appropriate to disclose the details of the situation
    - It is not appropriate to disclose who else was interviewed or what other witnesses may have shared with the investigators.
    - Ask open ended questions about the general relevant areas
    - Ask questions to illicit information to understand context
    - Explore new areas of potential misconduct that may arise
    - Take detailed notes
    - Request documentation from witnesses relevant to their testimony
    - Instruct witness on the importance of confidentiality of the meeting
6. Take Affirmative Steps to Maintain Confidentiality
  - Confidentiality is critical to the integrity of the investigative process.
  - Maintaining confidentiality is more difficult right now with so many employees working remotely.
  1. Ways to Preserve Confidentiality
    - Limit the number of people who are made aware of the complaint. (Goes back to keeping the circle small.)
    - Limit the information shared with witnesses (including in writing)
    - Limit the audience to whom the findings of the investigation are shared.
7. Evaluate the Merits of a Written or Verbal Report
  - Depends on the circumstances (summary vs. detailed report)
  - Consider past practice
  - Is litigation contemplated?
  - Determine whether disciplinary or remedial recommendations will be included in report
8. Recommendations / Remedial Measures
  - Impose disciplinary action
  - Modify internal policies and procedures to prevent similar misconduct
  - Evaluate whether legal authorities need to be contacted
  - Determine the best method to communicate the results of the investigation to the complainant, respondent and potentially others including the general workforce or public

DATE & TIME

Date & Time:

Wednesday, January 20, 2021

3:00 pm to 4:00 pm (ET)

MATERIALS

Materials:

Download Course Materials

WHO SHOULD ATTEND

Who Should Attend:

Internal Investigations Lawyers
Human Resource Professionals
Risk Management and Compliance Officers
Corporate Managers
General Counsel
Internal Investigation Officers
Top Level Management

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