This form is a Witness Interview Memorandum (Workplace Investigation) for use by employers and their attorneys to document witness interviews during an internal workplace investigation. This form includes drafting notes, optional clauses, and alternate clauses.
This form is intended for private employers. It is based on federal law and does not address all potential state law distinctions; thus, you should check any relevant state and local laws.
For more information on witness interviews in workplace investigations, see Interviewing Employees in Workplace Investigations and Interview Techniques and Questions for Workplace Investigations Checklist. For more information on documenting witness interviews, see Documenting Key Events in Workplace Investigations — Preparing Interview Outlines and Documenting Interviews. Also see the practical guidance in the Investigations subtask.
DO NOT DISTRIBUTE, PRIVILEGED AND CONFIDENTIAL, ATTORNEY WORK PRODUCT
Drafting Note to Header
In most cases, the employer will want the details of a witness's interview to remain confidential. If an attorney conducts the interview, the memorandum documenting the interview may be protected by the attorney work product privilege, particularly if the attorney includes in the summary the attorney's mental impressions of the interview. Limit distribution of privileged interview summaries to the investigation team and do not share them with employees. Include this header on all pages of the memorandum. For more information on preserving confidentiality and the attorney-client and work product privileges in investigations, see Attorney-Client Privilege and Work Product Protection in Workplace Investigations, Attorney-Client Privilege and Work Product Protection during Investigations Checklist, and Confidentiality in Workplace Investigations.
In some instances—particularly when interviewing a complainant—the employer may want to use the interview as an opportunity to document the complainant's position and record any admissions that may be helpful for future litigation. In that case, do not use this clause so that you may use the memorandum in litigation.
To: [In-house counsel / File]
From: [Interviewer(s)], [company or law firm]
Date: [Date of memorandum]
Re: [Witness's full name] interview on [date] concerning [company name]'s investigation of [subject matter]
- Investigation Background
[Company name] (the Company) is investigating allegations set forth in a complaint dated [date] made to [name and job title] asserting [summary of allegations] (the Complaint). [Interviewer(s)] of [company or law firm] is conducting the investigation.
Drafting Note to Section 1., Paragraph 1
If in-house counsel conducts the interview, to help preserve the confidentiality of the memorandum, state in this section that the attorney was acting in his or her legal—not business—capacity and provide supporting facts for this assertion.
This memorandum contains the opinions, mental impressions, and conclusions of [interviewer(s)] and has been prepared in anticipation of litigation on this matter.
Drafting Note to Section 1., Paragraph 2
Include this paragraph to protect the privileged nature of the memorandum. If you intend to produce this document in litigation, omit this paragraph. For more information on preserving confidentiality and the attorney-client and work product privileges
in investigations, see Attorney-Client Privilege and Work Product Protection in Workplace Investigations, Attorney-Client Privilege and Work Product Protection during Investigations Checklist, and Confidentiality in Workplace Investigations.
- Witness Biography and Employment History
[Witness's full name] is a [current/former] [title] at [company]. [Witness] [has been / was] employed by the Company for approximately [length of time].
Drafting Note to Section 2.
Former and third-party witnesses. If the witness is no longer an employee at the company, note his or her current employment, if known, and the approximate date when he or she left the company. If the witness is a third-party witness who the company never employed, note that in this section as well.
Discrimination claims. If the investigation concerns a discrimination or harassment claim based on membership in a protected class (e.g., race, gender, age, or sexual orientation), then it may be appropriate for you to note the witness's membership in that protected class.
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Originally published in A Lexis Practice Advisor®
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.