In conducting any investigation, the two most important sources of information are witness interviews and document reviews. These sources are invariably interconnected, and each must be managed effectively. Particularly, in internal investigations where the issue being investigated was not a recent occurrence, the document reviews carry further significance in shedding light to the events. In this sense, it is also crucial that the document review is conducted carefully and thoroughly in order to cover the underlying facts of the issue.
In structuring and conducting the document review, the investigation team or the counsel who will be managing documents will need to become familiar with the documents that might be relevant to the investigation and from the outset, they must ensure that relevant documents are collected and preserved, by also implementing a system for tracking the documents that have been collected. The investigation process could be impaired by a failure to secure a specific document that is highly relevant for the issue being investigated. For this reason, the scope of any document preservation notice should be over-inclusive, rather than aiming for a simpler and narrower scope.
The key documents related to an investigation can be gathered through the company records and information systems. However, in collection of documents, the employees' role is also highly critical as they might be in a position to provide documents and data specifically related to the issue being investigated. Employees can be provided a comprehensive list of types of documents which the investigation team seeks and specific instructions should also be given for provision of all relevant documents including drafts, notes, and finalized documents. They should also be encouraged to contact the investigation team for any question they might have in this regard.
It is also critical that employees are asked for any documents they might possess which they may have not have previously provided to the investigation team, such as documents kept at their homes or on their personal devices. Further, all employees should be instructed to not alter, discard, destroy or conceal any document that might be related to the issue being investigated. For such reasons, the investigation team could consider obtaining the employees' written confirmation that they have provided all documents and data that might be relevant to the issue being investigated and that they have abstained from altering, discarding, destroying or concealing any documents.
While it may not appear as practical, having the documents scanned, categorized and logged after they are collected will provide the investigation team with a certain level of visibility and will enable them to search through the data more easily. This will also allow the investigation team the convenience of sorting and reviewing the documents for relevance and client-attorney privilege, since access to privileged documents should be limited to certain persons within the company.
After the document review phase is completed, in practice, internal investigations generally conclude with a written report. The report should preferably contain (i) background information as to the allegations and potential violation, (ii) a description of the steps taken, including information on persons who have been interviewed and the scope of the documents reviewed, (iii) a factual discussion and an analysis of facts in light of the relevant laws and regulations, and (iv) recommendations regarding the required steps or measures to be taken.
The contents of the report will also depend on a variety of factors specific to the investigation, including the violations that were found, the addressees of the report or any requirements regarding third party disclosures by also considering the possibility of future submission of the report to governmental authorities, if and when requested.
The section containing the findings of an internal investigation could be the most crucial as it will be the culmination of all the work undertaken throughout the investigation process. This section should lay out a detailed and comprehensive description of the facts in chronological order or by grouping them, by also noting the areas where the information gathered is unsubstantiated or unverified, since the contents therein will serve as the basis for the recommendations that follow.
It would also help preserve the attorney client privilege and work product doctrine to mark the report with the disclaimer "Attorney-Client Privilege" and "Attorney Work Product." At the beginning of the report, a summary may be included explaining that the necessary warnings were made to the employees involved in the internal investigation and that the report contains the impressions of the investigation team garnered from the interviews and documents.
In the end, investigations prove to be reliable compliance tools when the investigation process is managed properly, especially in presenting the results of the investigation. Both during and at the end of the investigation, aspects of the internal investigation must be decided on, including the form of the report, compliance with the company`s internal rules and policies, remediation and disclosure requirements. As a last step, the investigation team should ensure that the results of the investigation are communicated to the relevant persons within the company, however when deciding on whether and how to share the results of the investigation, they should always consider the potential impact of any disclosure.
This article was first published in Legal Insights Quarterly by ELIG Gürkaynak Attorneys-at-Law in December 2021. A link to the full Legal Insight Quarterly may be found here.
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.