The COVID-19 pandemic has been with us for almost 18 months now, and with India going through intermittent phases of lockdown, all stakeholders have had to quickly adapt to conducting investigations remotely. As we get used to the 'new normal', we have listed out some helpful (hopefully) tips for conducting a remote investigation, irrespective of whether the issues involve workplace harassment, conflict of interest, bribery allegations or a whistle-blower complaint. These tips are by no means beyond reproach. However, these are suggestions that may very well work if they are applied judiciously to appropriate facts and circumstances. The growth in remote working will invariably expand both the number and variety of data sources relevant to investigations. This is also why remote working and data privacy policies must change so that clear expectations can be set for all stakeholders as the policies are regularly tested when remote investigations are conducted.
I. PLAN AND PREPARE
It can often be overwhelming to initiate an investigation as the processes to be followed (whether internal or under law) can seem onerous to begin with. Scheduling preliminary discussions with individuals who are familiar with the background can give the investigator a better understanding of the internal processes. For an investigation on behalf of a company, obtaining a panoramic view of how the organization is structured can sometimes be the key.
II. DATA COLLECTION
As the majority of employers continue their work from home mandates, data collection can very well pose a significant hurdle. Investigators should collate a list of all documents, policies and internal communications that are required and submit requests for such information well ahead of time. More often than not, interviewees will face delays in providing the investigation team with these documents due to the information security constraints they face from working from home. The proliferation of Bring Your Own Device (BYOD) arrangements in organisations will likely make matters more complicated. Interviewees may have privacy concerns as well, and it is imperative that they are assured of the measures taken to protect their privacy. It is no exaggeration to state that concerns about privacy have sometimes resulted in interviewees refusing access to their digital devices.
III. CONDUCTING INTERVIEWS
Traditionally, interviews have always been conducted in person. However, with the on-going pandemic, such interactions may not be possible in the short term. It thus becomes incumbent on the investigating team to plan a series of video conferences with each of the interviewees. The investigating team must ensure that they have downloaded the video conferencing platform that is commonly used by the organization in order to avoid any unexpected delays. If multiple interviews have been scheduled in a day, it is best to include sufficient breaks in between. In remote interviews, the interviewer must also make a conscious effort to ensure the interviewee is comfortable and considerable thought should be given as to how many people should participate in the interview. There is an increasingly popular school of thought nowadays which suggests that one should not set up time in advance but instead review the interviewee's calendar to "pop in" or call the individual and ask her/ him to cancel a current meeting to accommodate the investigation interview. While the jury's still out on how effective this method is, we strongly suggest that before employing such a method in an internal investigation, the employer's consent is necessarily taken.
The importance of maintaining confidentiality cannot be overemphasized in any interview, be it 'remote' or 'normal'. However, special emphasis must be provided on this aspect given that most interviewees will be working from home in these times. Factors that stand out include ascertaining whether other individuals are in the same room as the interviewee and whether they have access to what is being discussed. This is crucial because the nature of an investigation is such that often extremely sensitive information may be shared.
Admittedly, it is impossible to mitigate all risks but there are some obvious steps that one can take. For instance, not setting public calendar meeting invitations and in some cases, not even emailing sensitive documents. Alternative ways like phone calls to gather facts or SFTP transfers can be explored by the investigators.
V. ENSURE THAT THE INTERVIEW IS NOT BEING RECORDED
Typically, when interviews in person are conducted, it is relatively easier to ensure that the interviewee is not recording the conversation. With respect to video conferences, however, while most platforms and apps alert both parties if one of them tries to record the conversation, there is nothing to stop the interviewee from discreetly recording the conversation on a phone or tablet without the investigation team's knowledge. Clear instructions must be issued prior to the commencement of the interview wherein the interviewee is strictly warned of the consequences of illicitly recording the conversation.
VI. BODY LANGUAGE
Regardless of whether the interview is being conducted in person or via a video-conferencing app, close attention must still be paid to the body language of the interviewee. Consequently, all interviewees should be instructed to ensure that they have functioning cameras prior to commencing the interview. Ensuring that the interviewee is visible to the investigator at all times can also help confirm that the interviewee is not relying on documents to answer questions posed to him/her. Noticing changes in behaviour or demeanour is vital to determining the path of questions that the investigation team should take.
VII. ADDITIONAL CONSIDERATIONS
During these turbulent times, every individual's mental health has been tested at some point or the other. This is certainly something that investigation teams would do well to keep in mind. It is best to avoid scheduling meetings at odd hours. If the interviewee is exhibiting distressing signs of stress, worry or anxiety, adequate attention must be paid to it. In these instances, it is important to proceed with caution and ensure that the interviewee's mental health is not unduly compromised.
The primary consideration when conducting remote investigations is to remain flexible at all times. While we have espoused the importance of planning and preparation, there will always be a considerable number of factors that would not be within the investigator's control. Investigation teams must have the ability to adapt quickly and overcome hurdles that are atypical to pre-pandemic investigations and unfortunately, there is no defined playbook for that
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.