Corporate internal investigations best practices, …

1 Corporate internal investigationsbest practices , pitfalls to avoidintroDUCtion: tHe BeneFits oF an eFFeCtive Corporate internal investigationCorporations are being scrutinized today as never before. Public and private companies alike are examined and in-vestigated not only by the government, but by increas-ing numbers of local, state, and foreign government agen-cies. Private plaintiffs are also filing more and more cases with significant allegations that attempt to call a corpora-tion s conduct into question.

2 Frequently, Corporate scrutiny focuses on compliance issues: that is, whether companies comply with the legal obligations to run the business ethi-cally around the world. Corporations are clearly facing sig-nificant challenges. There is a path, though, for corporations to best protect themselves in the harsh glare of the spotlight on compli-ance issues. That is: When a company is confronted with evidence or allegations of potential wrongdoing, the com-pany is well served to respond deliberately and thought-fully by making sure that it understands all the facts.

3 If the facts evidence a violation of policy or worse, of law the company should respond promptly with appropriate dis-cipline, remediation, and (in certain cases) perhaps even discussions with the government. Under the right circumstances, conducting an effective Corporate internal investigation protected by the attorney- client privilege can benefit the company in a number of ways: Revealing all of the relevant facts so that management and/or the board can make a fully informed decision as to how best to proceed; Stopping the conduct to prevent further violations; Memorializing the company s good-faith response to the facts as they become known.

4 Insulating management and/or the board against allega-tions of complicity; and Promoting a culture of transparency and compliance throughout the organization. Each of these benefits can be achieved if the investigation is well designed with a specific work plan that addresses document collection and review, witness interviews, care-ful analysis, and periodic reporting in the format that best serves the client s Day has developed one of the deepest benches in the world of former prosecutors and regulators and of lead trial lawyers, all of whom guide and defend companies every day through their most sensitive and urgent issues.

5 The materials in this collection, written by the partners and associates within the Firm s Corporate Criminal Investiga-tions Practice, describe different aspects of our practice as related to Corporate internal investigations . The materi-als cover best practices in witness interviews, reflections on the Corporate attorney-client privilege, representation issues in internal investigations , joint defense agreements, the effective use of experts, the growing prevalence of global Corporate investigations , and protecting a compa-ny s interests after hope that you find these materials instructive and Carberry and Richard DeanePractice LeadersCorporate Criminal InvestigationsContentsBest practices for Conducting Witness Interviews 1 The Corporate Attorney-Client Privilege Today: Is Waiver Still a Worry?

6 10 Representation Issues in Corporate internal investigations : Identifying and Addressing Risks 16 best practices Regarding Joint Defense Agreements 23 Choosing and Using Experts Effectively 29 The Weight of the World: Meeting the Challenges of Global Corporate investigations 37 Protecting a Company s Interests After Self-Disclosure 45 Endnotes 581 Witness interviews are a critical part of virtually every inter-nal Corporate investigation . Witnesses have the facts the who, what, where, when, and why and how successfully interviewers extract those facts can make or break the in-ternal any particular investigation , witnesses can, and often do, run the gamut; some may truthfully recite what they do and do not know and also offer leads that further advance the investigation , while others may obscure the facts, if not flat-out lie, and thereby sidetrack or even obstruct the investi-gation.

7 Finally, there are witnesses who come clean at the last this perspective, a good interview is, fundamentally, one that enables: (i) the discovery of as many relevant facts (or sources of such facts) from the witness as possible; and (ii) an accurate assessment of the witness s credibility. This section sets forth certain considerations and best prac-tices for conducting an effective witness interview. It should be emphasized, however, that conducting a good interview is at least as much art as science. Meticulous preparation, well-crafted questions, and facility with documents can en-sure that the relevant substantive topics are covered during best practices for conducting Witness intervieWs2the interview, but well-honed soft skills are often neces-sary for eliciting information that the witness may be reluc-tant to share and determining whether the witness is telling the truth.

8 In particular, interviewers should be adept at de-tecting and interpreting various indicia of veracity, such as signals the witness gives about her candor, interests, and motivations through her body language, speech patterns and other verbal cues, and overall demeanor. Against this backdrop, it should be clear that each inter-view in each investigation is a distinctly unique event de-serving of careful planning and its own strategy, tailored to the witness in question. ConsiDer FaCtors tHat May iMpaCt WHetHer, WHen, WHere, anD/or HoW to ConDUCt tHe intervieWInternal investigations and related interviews do not oc-cur in a vacuum.

9 Instead, there are invariably surrounding circumstances and potential collateral consequences of which investigators should be cognizant when developing and implementing an investigative plan and preparing for individual interviews. Is the investigation oveRt oR CoveRt? Investigators should consider whether the subjects of an investigation and other prospective witnesses know of the investigation . Investigators ability to obtain evidence and information through certain means can be diminished once the investigation goes overt.

10 The element of sur-prise can be an especially valuable tool for investigators substantial covert investigative activity leading up to un-scheduled drop-in interviews of key subjects can help ensure both that the interviewers are knowledgeable about the conduct within the scope of the investigation and the witness s participation therein and that the witnesses are not afforded the opportunity to individually or collectively rehearse or, worse, fabricate answers to difficult ques-tions. Of course, when dealing with a witness, investigators should refrain from misleading or harassing her and should adhere to any applicable legal rules, contractual rights, or Corporate policies governing the scheduling and conduct of an interview.