This list outlines steps to take when confronted with an
external regulatory investigation or the need for an internal
Before an Investigation/Inquiry
Prepare: Before any investigation arises, have a
Crisis Management Plan in place. The plan should include a Response
Plan and an Evidence Retention Plan as described below.
At the Outset of an Investigation/Inquiry
Assess: Gauge the nature and scope of the problem
presented and carefully consider any possible broader liability
issues or exposure. Considerations may include:
Whether the problem presents any
The persons involved and their
proximity to the problem
Whether an internal self-directed
investigation is necessary.
Engage: Consider whether to immediately engage
external counsel to provide advice and support throughout the
process. In the case of an internal investigation, early retention
of external counsel may assist in limiting independence and
privilege issues that may arise during the investigation.
Restrict: Consider any practical or legal
impediments that would prevent or limit internal discussion and
disclosure of the investigation itself.
Begin on a strict
"need to know" basis.
Consider who may already know and who
needs to know, and consider confidentiality measures to prevent
Unify: Centralize the investigation response
leadership. Liaison with police or regulators, where possible,
should be through a single point of contact.
Strategize: If they do not already exist as part
of your Crisis Management Plan, develop a Response Plan and an
Evidence Retention Plan. Consider tailoring these plans to the
matter at issue.
For the Response Plan, considerations may
Deadlines for collection and delivery
of material in response to regulator requests
Conflicts of interest, independent
legal advice and cost payment issues
Coordinated defences and joint
Use and retention of experts.
For the Evidence Retention Plan, the goal is a
comprehensive and prompt process for gathering and retaining
documents. Considerations may include:
What steps are necessary to suspend
routine data retention practices?
Whether to restrict system
Whether to obtain advice on data
preservation, recovery and custody.
Implement: Put the plans into action, following
the written procedures that you have set out. Consider documenting
the steps taken to preserve records, including electronic
Communicate: Consider developing and implementing
a media strategy.
Prevent: Consider any disciplinary issues arising
from the investigation.
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
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