This document provides an overview and agenda for a seminar on conducting effective internal investigations. It discusses critical triggers for launching an investigation, how to determine the proper scope by considering relevant witnesses, documents, and things. It outlines best practices for interviews and evidence collection, such as interview order and topics to cover. The document also discusses how to memorialize and preserve investigation evidence, such as taking detailed notes and handling documents. Finally, it addresses legally and efficiently remedying any problems uncovered through remedial measures and compliance improvements.

1. 33rd Annual Employment Law Seminar
OCTOBER 27 & 28, 2021 | MULTI-DAY WEBINAR
p a r s o n s b e h l e . c o m
BOISE | HELENA | IDAHO FALLS | LEHI | MISSOULA | RENO | SALT LAKE CITY
Conducting an Effective
Internal Investigation
Susan Baird Motschiedler
801.536.6923 | smotschiedler@parsonsbehle.com

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Agenda
A. Critical Investigation Triggers
B. Scope of Investigations: What to Consider
C. Legal Best Practices for Interviews and Evidence Collection
D. Memorializing and Preserving Investigation Evidence
E. Legally and Efficiently Remedying the Problem

3. Critical Investigation Triggers

4. 4
Critical Investigation Triggers
• When Should you Investigate?
• When you become aware of employee conduct that, if true, could
create legal exposure for the company, like
◦ Unlawful discrimination – race, color, religion, sex, national origin,
citizenship, age, disability, veteran status, retaliation, etc.
◦ Unlawful harassment – same types
◦ Violations of other statutory/legal obligations – securities, financial fraud,
insider trading, espionage, government funds, etc.

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Critical Investigation Triggers
• When you become aware of employee conduct that is creating
problems within the company, including:
◦ Employee theft
◦ Employee sabotage
◦ Workplace accidents
◦ Workplace violence
◦ Drug & alcohol use
◦ Others

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Critical Investigation Triggers
• Come to Company’s Awareness Through:
◦ Own observation or analysis of data
◦ Anonymous complaint hotline
◦ Employee complaint/report
◦ Customer complaint
◦ Rumor
◦ Any other way you learn of a possible problem

7. Scope of Investigations:
What to Consider

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Scope of the Investigation
• What is the goal of every investigation?
◦ Uncover the truth
◦ Prepare a legal defense
◦ Preservation of evidence
◦ Stop illegal or bad conduct
◦ Correct problems

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Scope of the Investigation
• How do you reach the truth?
◦ Gather enough evidence
◦ Interview enough people
◦ Remain impartial until you finish gathering facts
◦ Carefully compare and analyze everything you gathered to determine what
the weight of the evidence says

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Scope of the Investigation
• Consider each of these goals in your investigation plan to determine
what to look at in three categories:
◦ Witnesses
◦ Documents
◦ Things

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Witnesses
• Witnesses
◦ Make a list of everyone likely to have seen or heard details
◦ Sort it into two categories:
1) those likely to have personal knowledge of the most critical facts (personal face to face
interviews will be done); and
2) others (emails or phone calls may suffice)
Note - Your list may change as you go
◦ Keep notes as to the decisions you make along the way

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Documents
• Documents
◦ Make a list of all documents likely to be relevant
◦ Documents might include, for example:
 Policies and procedures
 Statements or notes taken about the incident
 Personnel file of accuser
 Personnel file of accused
 Incident files involving prior complaints by the accuser or against the accused

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Documents
Documents (cont.)
◦ Manager’s notes and files about employees involved or work area
implicated
◦ Personnel files of other critical witnesses
◦ Logs and diaries
◦ Timecards or security badge readings
◦ Expense reports and receipts
◦ Texts, emails, social media posts, phone logs
◦ Note - your list may change as you go

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Things and Locations
• Things and Locations
◦ Make a list of everything that might help you understand what happened or
help prove or disprove an allegation
◦ This might include, for example:
 A worksite visit to the location (for context or evidence)
• Injuries
• To understand the physical layout
 A surveillance tape
 A phone recording
◦ Note - Your list may change as you go

15. Legal Best Practices for Interviews
and Evidence Collection

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Interviews and Evidence Collection
• Interview Witnesses or Gather Evidence First?
◦ Nature of the investigation subject
 i.e., allegations of harassment/assault vs. allegations of ongoing fraud
 Do witnesses need immediate attention?
• Concerns regarding spoliation?
• Identify tools at your disposal
◦ IT
◦ Backups of data
◦ Outside forensic company

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Outlines and Order of Witnesses
• Prepare an interview outline for each witness to be personally
interviewed
• Include standard comments and questions plus witness-specific
ones
• Use the format that works best for you:
◦ Specific questions
◦ Broader topics
◦ Some combination of those
◦ Open-ended questions elicit information
• Signed witness statements?

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Order of Witnesses
• Interview Complainant first and promptly (perhaps before planning
most of the investigation and before witness outlines complete)
◦ Shows the Complainant you are taking it seriously
 Complainant may otherwise complain to coworkers; governmental agencies
 Problem may get worse
◦ There may be immediate corrective action to take
◦ Informs the scope and order of witnesses
◦ Informs the documents needed

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Order of Witnesses
• Interview other witnesses
◦ Separately
◦ Never as a group
◦ Update witness outlines/questions as needed
• Interview accused last
◦ Otherwise, is a risk that the accused will try to influence testimony of others.
• Re-interview witnesses as needed for clarification/confrontation of
different facts.

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Topics to Cover
• Topics to cover:
◦ Introductory comments
 Upjohn Warning
 Confidentiality
◦ Witness background
◦ Witness credibility
 Bias – friendship; brown-nosing
 Basis for information

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Topics to Cover
• Topics to cover (cont.)
◦ The incident
◦ Witness documentation
◦ Other witnesses
◦ Closing comments
 Confidentiality
 Retaliation concerns
 Contact information
• After interview, edit witness outlines as needed

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Evidence Collection
• Document Hold
◦ Suspend automatic destruction/deletion
◦ Notify custodians
◦ Make copies of employee accounts/computers
◦ Ask witnesses for relevant documents
◦ Document what you have done
• Retain all documents relevant to the investigation
◦ Keep references of witnesses who can authenticate
◦ Maintain by custodian
◦ Make copies for the interviews – do not write on originals!

23. Memorializing and Preserving
Investigation Evidence

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Interview Notes
• Take notes however best suits you
◦ Legal pad, spiral notebook, lab notebook
◦ Computer
• Review notes immediately after interview:
◦ Number your pages (1 of 10, 2 of 10, etc.)
◦ Fill in gaps
◦ Clarify cryptic notes
◦ Make notes on credibility (worthwhile to have separate credibility
determination)
◦ Follow up immediately with company personnel on any issue that needs
immediate attention

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Preservation of Investigation Notes
• At end of each interview (cont.):
◦ Determine additional questions for other witnesses
◦ Edit other witness outlines
◦ Determine if additional documents are needed for witnesses
◦ Make copies of any documents you have received
 Keep originals separate
 Make notes on your copies
• Convert notes to electronic format (scan as pdf or dictate and have
typed) and store as part of the investigation file.
• Save under each witness

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Preservation of Investigation Notes
• To record or not to record:
• Pros:
◦ Transparent and open investigations
◦ Protects against potential prejudice or overreach of investigator
• Cons:
◦ If record one, must record all
◦ Can become evidence in other, unrelated matters
◦ Does not fully record details upon which credibility may be based
◦ Allows for additional scrutiny of credibility determinations

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Documents
• Document your system for keeping files separate and secure
• Document how you obtained the document
◦ IT, outside vendor, witness, etc.
◦ Document the custodian of the document
• Preserve the original document –
◦ Preserve metadata of ESI
◦ Do not write on a paper document!
• Make Copies of documents for interviews
◦ Interviewee set
◦ Interviewer set (perhaps one per witness; notes on document)
• Mark documents with attorney notes as “Attorney Work Product”

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Witness Statement Documents
• Decide whether to create witness statements for each witness:
◦ One per witness (all or none; unless compelling reason)
◦ Succinct write-up of relevant facts and information
◦ Written shortly after interview
◦ Reviewed and signed by witness
◦ Any changes should be noted, initialed
 Review any changes with the witness to make sure you understand the testimony and
reasons for the change
 If changes are significant, this warrants a re-interview
 Do your own witness statement with signature describing the change in story and why
you do or do not believe it

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Investigation Report
• View investigation report as free-standing document
• Destroy any working drafts of report
• Investigation report should identify:
◦ Investigator
◦ Company
◦ Dates of Investigation
◦ Every document, witness, physical item and physical location examination
◦ Dates of witness interviews or site visits

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Investigation Report
• Investigation report should include:
◦ A summary of the issues raised
◦ Relevant facts
◦ Methodology used to conduct the investigation
◦ Scope of the investigation
◦ Applicable law
◦ Findings and facts that support the findings
◦ Any recommendations

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Investigation Report Best Practices
• Investigation Report Best Practices:
◦ Explain the basis for your determinations about credibility of witnesses or
documents where there are conflicts in the evidence;
◦ When you are reaching and explaining your credibility decisions and ultimate
conclusions, identify and deal head on with problems in the evidence – do
not bury or ignore troubling facts.

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Investigation Report Best Practices
• When you are reaching credibility decisions and ultimate
conclusions, you must be able to convincingly explain why you are
choosing what evidence to believe.
• If your explanations and conclusions are not convincing, they are
either poorly written or they are wrong.
• If your conclusions aren’t convincing, reexamine the evidence,
reexamine credibility determinations, and re-think conclusions before
re-drafting the section.

33. Legally and Efficiently
Remedying the Problem

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Remedying the Problem
• Remedial measures should be implemented or considered:
◦ Disciplinary actions, such as reprimands, warnings, last chance warnings,
suspension, demotion, salary freeze or termination of personnel
◦ Measures to prevent recurrence
◦ New compliance procedures
◦ New internal controls
◦ New training/different training
◦ Appointment of new personnel overseeing compliance, finances, or
accounting
◦ New chains of command that would help reveal misconduct
◦ Additional or new auditing procedures

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Remedying the Problem
• Remedial measures (cont’d) :
◦ Enhanced periodic reporting to senior management, the audit committee,
or the board of directors
◦ Appointment of additional compliance personnel, such as regional or in-
country compliance officers, to supplement existing compliance personnel
◦ Reviewing internal controls from a cross-disciplinary team that includes
personnel from the finance, internal audit, legal, and audit departments

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Thank You
• Susan Baird Motschiedler
801.536.6923
smotschiedler@parsonsbehle.com