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Conducting Internal Investigations During the COVID-19 Pandemic
In times of crisis, criminal activity — particularly crimes involving theft and fraud — tend to spike. There is no reason to believe that the COVID-19 pandemic and the unrest in the financial markets will be any different. An important difference for company counsel, however, will be in how the malfeasance, negligence or wrongdoing can be investigated.
The usual methods for conducting a meaningful and thorough investigation need to change quickly. In-person document collection and review as well as face-to-face interviews are out, and questions and challenges have arisen for counsel. For example, without in-person witness interviews, how can defense counsel truly assess the merits of any whistleblower report or a witness's credibility? How can documents be shown to a witness sitting in a different country if borders are closed and flights are cancelled? Even if the law firm has a local office in the country in question, what if that country is in lockdown? How can documents be transmitted across international borders to U.S. counsel needing to defend the company before the DOJ or the SEC without violating local privacy laws? How can a company ensure enforcement of a document hold during an internal investigation and parallel government inquiry when its employees are all working from home? And with counsel accessing a company's data remotely and increases in Internet crimes, such as phishing, how can the security of that data be maximized?
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