Internal Investigations Flashcards
Who is the appropriate party to conduct an internal investigation?
There is no privilege for in-house counsel conducting an investigation. For this reason, would want to use someone other than usual litigation counsel to conduct the investigation. [??]
Further, any third-parties hired to assist with the investigation should be hired by outside counsel so as to avoid claim they were hired in the course of business and not for the litigation.
What is the basis for conducting an internal investigation?
Warranted if there is serious evidence of misconduct that could expose the company to liability or company has been victimized in some way.
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Reliance on advice of counsel is a worthwhile defense, and is a good argument for hiring outside counsel early.
Should a company have an investigation policy statement?
If it does, it should be careful not to set too stringent a standard for itself.
What are key considerations regarding an internal investigation?
1) Credibility
2) Independence - the more individuals who know about the investigation, the less likely that the appearance of independence can be maintained
3) Scope - should be clearly defined in any engagement letter with outside counsel
What are the Upjohn warnings?
Remind employees/interviewees that:
1) Counsel represents the entity & not the person
2) Privilege belongs to the entity & not the person
Should a Code of Conduct reference investigations?
Yes, it should address requirements for cooperating with any investigation & penalties for failing to do so. If someone tries to shake down the entity in return for cooperation, ask to confirm in writing that he/she is refusing to comply with the Code of Conduct.
Should there be a memorialization of the investigation?
Yes, it ensures that the objective of the investigation is accomplished; it will trigger subsequent events for which you will want a record to reference; it must contain sufficient detail to enable anyone who has to act on it to be able to do so.
What is the role of a litigation hold in an internal investigation?
A litigation hold should be issued promptly and the company’s automated data-deletion cycles suspended. Employees should be required to confirm receipt of the litigation hold memo and acknowledge their compliance. As the investigation proceeds, this memo must be revisted and updated as the scope of the inquiry changes.
