Conducting internal investigations in a remote environment
INSIGHT ARTICLE |
There is no question that the COVID-19 pandemic has posed unique challenges for internal investigation teams, including in-house investigators, external counsel and forensic accountants. Stay-at-home orders, travel restrictions and social distancing have impacted the typical processes for preserving evidence, gathering data and documents, interviewing witnesses and presenting findings. Despite these restrictions and limitations, it is still possible for the investigation team to mitigate these challenges and minimize delays in the internal investigation. The following proactive strategies should be given consideration prior to commencing an organizational investigation:
1, Assess the impact of reduction in workforce issues
The COVID-19 pandemic has had a significant negative impact on the economy, resulting in massive reductions in workforce across a variety of industries. The unemployment rate peaked at an unprecedented 14.7% in April 2020, and though the rate decreased to 6.7% in December 2020,1 the recent uptick in COVID-19 cases as well as local and state stay-at-home mandates suggest that the employment situation is still precarious. As an initial matter, the investigation team must take stock of identified custodians and key witnesses, as access to these individuals may be obstructed due to the reduction in workforce, including furloughed employees.
- Conduct custodial interviews as soon as possible: If the organization is considering personnel cuts, conduct those interviews promptly to avoid losing access to individuals with key knowledge regarding relevant documents and data. Custodial interviews should be prioritized in order to identify the location of potentially relevant information (e.g., electronic devices as well as physical and electronic documents and data) and conduct interviews prior to employee departures.
- Assess availability of key witnesses: Consider factors such as the availability of key witnesses, including whether the employee will be furloughed or laid off, or made otherwise unavailable.
- Maximize the value of employee exit interviews: Prepare HR for employee exit interviews, including information that may be relevant to the investigation.
- Evaluate adequacy of legal hold: For example, evaluate whether the data retention policy with respect to terminated employees is appropriate. Electronic devices obtained from terminated employees may warrant a longer “hold period” by legal and IT before the devices are reprocessed and placed back into service.
2. Assess the impact of a remote workforce
Starting in March 2020, working remotely became the new normal for many employees, with some organizations managing to get more than 90% of their staff working remotely.2 A Gartner, Inc. survey of 800 global HR executives found that 88% of organizations have encouraged or required employees to work from home, regardless of whether they showed coronavirus-related symptoms.3 This trend is expected to continue, as a Gallup survey of company leaders representing HR, legal and compliance, finance and real estate revealed that 82% of respondents intend to permit remote working some of the time after the pandemic, and 47% will allow employees to work from home full-time.4
Despite the realities of the current and future remote environment, the issues leading to the need for an investigation still exist. Regardless of whether the investigation is in the initial planning stages or near completion, the investigation team should reexamine the scope and work plan to assess whether procedures can be completed efficiently and effectively in a remote environment.
Restrictions on travel and access to corporate facilities and personnel can affect the investigation team’s ability to collect all relevant documents and data in a cost-effective and timely manner. For example, investigation teams may not have the ability perform in-person document inspections to review and flag relevant documents. Due to stay-at-home orders, company staff and employees may be unavailable to respond to document requests, thereby causing unplanned delays. As such, document collection planning and scoping is critical. Leading practices for document collection in a remote environment typically include the following:
Development of a comprehensive custodian and data map outlining the location and accessibility of physical and electronic documents and data. Securing data on devices spread out geographically, such as data residing on remote employees’ personal laptops and electronic devices, must also be considered.
Establishment of secure protocols for the handling and transmittal of information and evidence as well as privileged material.
If the collection of hard copy documents cannot be done safely, the investigation team should consider sequestering the documents in a safe location to be scanned at a later date.
Creation and maintenance of a tracking log that documents the information gathered, including custodian, collection date, location and method
Witness interviews are a critical component of the investigative process. While in-person interviews are certainly preferable, they may not be possible due to COVID-19. Therefore, investigation teams must consider alternatives, such as videoconference interviews. Videoconference offers many benefits, including the ability to observe the witness’s demeanor and establish a rapport with the witness as well as sharing documents via screen-sharing tools.
The challenges of remote witness interviews include the unavailability of witnesses due to furloughed or reduced work schedules, difficulty evaluating witness demeanor and credibility and the interviewer’s inability to control the remote interview environment (e.g., the witness may disconnect to avoid responding to questions).
Nevertheless, the investigation team can mitigate these challenges without delaying the internal investigation: Through adequate preparation and coordination, remote interviews offer a cost-effective, efficient and safe way to conduct interviews during the COVID-19 pandemic.
- Be prepared to quickly plan and schedule witness interviews. Witnesses sometimes offer to speak immediately after an event, but often change their minds if enough time has elapsed. Interview scheduling and prioritization is largely dependent on who is being interviewed, e.g., whistleblower, target witness or fact witness. If a witness is expected to be contentious, it may be preferable to defer the interview to such a time in which it can be conducted in person and in a controlled environment.
- Provide clear instructions and expectations to interviewees in advance of interviews. Establish the formality of the interview. Inform the witness in advance that the interview will be conducted by videoconference and confirm that the witness has all necessary hardware (e.g., computer camera) and internet access. Request that the witness find a quiet, private setting for the interview to avoid interruption or prying ears. The investigation team may need to consider simultaneous interviews for certain interviewees to mitigate the possibility of communication with others during the interview or a break.
- Establish the ground rules at the onset of the interview, such as agreeing which individuals will be present during the interview. Ask the witness to confirm they are not recording the interview or copying documents (e.g., via screenshots) shared during the interview. Other considerations include pre-arrangement of breaks (but not while a question is pending). Lastly, establish an alternative means of communication in case of any technological glitches.
- If the internal investigation is being conducted at the direction of counsel, non-attorneys, such as forensic accountants, must act under the direction and instruction of in-house or outside legal counsel to preserve the attorney-client privilege. When in doubt, have an attorney present on the videoconference so that the appropriate qualifiers and disclaimers (e.g., Upjohn warnings) are properly communicated.
- Coordinate with the investigation team to limit the number of participants so that the witness does not feel intimidated. If possible, the interviewer should have a team member take notes and confirm witness statements.Prepare an outline or list of questions in advance, but be prepared to pivot. Prepare exhibits beforehand and have a plan for sharing documents. In certain instances, it may be necessary and/or more efficient to share documents, potentially password protected, in advance of the interview via email. As always, be mindful of employment law and data privacy risks before questioning the witness about documents.
- Interviews should be memorialized. Interview summaries create a strong record for the investigation and allow the entire team to access the information obtained during the interview.
Despite the challenges imposed by COVID-19, the key principles of internal investigations remain unaltered. By developing practical strategies to combat those impediments, investigation teams can effectively complete remote investigations and ensure the credibility, transparency and reliability of the investigation process.