Navigating the Complexities of Internal Investigations In the Current Climate

Diversify the Investigative Team

While it goes without saying that an investigative team needs to have the relevant subject matter expertise, the team also should be tailored to the allegations with care and consideration given to diversity of backgrounds and experiences. With an increased sensitivity to allegations of workplace misconduct, racial and sexual harassment, and even acts of violence, the investigative team should have members with the necessary experience and training to speak with victims of the type of conduct alleged and who can properly provide perspective and gain a witness's trust, as well as assuage concerns and fears. In addition, the investigative team should include members with relevant government service and experience to help navigate discussions with interested government agencies or other regulatory bodies.

Define the Scope of the Investigation

The investigative team should adopt an investigative scope that is reasonably tailored and calculated to be prompt but thorough. At the onset, this assessment includes deciding who should be interviewed, the preferred format and order of interviews, and what documents need to be located, preserved, reviewed, and prioritized, as well as what information may be in the public domain that needs to be preserved, such as social media posts. The increasingly complicated issues surrounding obtaining employees' cellphone data and text messages, including data from ephemeral messaging apps, also need to assessed as early as possible. An added challenge arises when the investigation spans across borders, as there are a multitude of differing and often conflicting laws and rules that govern privilege, foreign data privacy, and labor and employment matters in certain jurisdictions. Last, but most important, the potential audience for the results of the internal investigation is key to determining scope, in particular, whether the results will be documented in a written report, whether they may be required to be disclosed to the government or in potential civil litigation, and/or whether the company may need to issue public findings, perhaps with remedial recommendations as well.