Witness Interviews in Internal Investigations: The US Perspective
The white-collar practitioner’s interview of a company employee or officer is often the main event of an internal investigation or review. Significant planning and execution are required, however, well before a lawyer conducts the interview. Whether a witness interview is part of an internal or regulator-facing investigation, or general proactive review, it must be designed to extract the necessary information. Some witness interviews may be designed to gain a level of understanding about business operations or controls present in an organisation, while others may seek to determine corporate or individual culpability after a whistle is blown or an accusation levelled. In each case, the white-collar practitioner must focus his or her planning and resources on uncovering the most relevant information. This chapter provides practical considerations to prepare for, perform and report on witness interviews in the typical white-collar case.
8.2 Preparation for the interview
A good interview process starts with identifying the individuals with potentially relevant information to the investigation. In some cases, as with a specific whistleblower allegation, identifying the right interviewee may be easy. Larger or less well-defined reviews require more planning with respect to identifying the interviewees. One practical way to start is to obtain organisational charts, which will allow the practitioner to see reporting relationships and the relative rank of employees within the organisation. Speaking to a mixture of both high- and low-ranking employees can assist in collecting a broad base of information. Although attorneys often focus on higher-ranking employers, lower-ranking employees are closer to the day-to-day operations of an organisation and can provide important insight into operations and employee relationships.
Attorneys should be prepared, and even expect, that some employees will not have the knowledge that they are seeking or may not have the expected information. Flexibility is important, as interview time is valuable. If chosen carefully, almost all interviewees will have some valuable information, even if the expected information is not available from a particular interviewee. But, when the interviewee lacks the relevant information, careful consideration should be given to cutting a non-productive interview short to avoid unnecessary costs and to leave time for more substantive conversations later.
Once interviewees are chosen, a practitioner should consider the order in which witnesses will be interviewed. Generally, it is best to start with interviewees who may have background information to gain familiarity with the subject of the investigation and general information about both the industry and the particular practices of the company. Background interviews also help define the parameters of more specific and focused interviews of later witnesses. As the interview schedule progresses, more discrete and specific issues can be the focus. If possible, it is best to interview employees in surroundings that are comfortable to them. However, certain sensitive interviews may be better conducted at a third-party location, such as a hotel conference room nearby to the interviewee’s home or office. It is important that interviewees feel comfortable to speak freely and honestly, which may dictate a meeting outside the workspace and away from co-workers and supervisors to avoid the perception of corporate control.
Attorneys usually rely on outlines to guide the interview. An outline will annotate the main issues and information sought and provide a checklist to make sure all planned topics are covered in the interview. Key questions or points can be listed to aid in the interview process and flow. Relevant background information, such as key dates or events, or excerpts from key emails should also be included to aid in the event that an interviewee does not recall important details. In addition, an outline will highlight specific documents or exhibits that will be covered with an interviewee to aid in refreshing the witness’s memory or elucidating statements made by the witness. The interviewer should, however, remain nimble and be able to veer ‘off script’ if unexpected information surfaces during the interview. Preparation is key, but not at the expense of gaining valuable information.
Finally, when preparing for interviews in locations outside the United States, planning for the interview should account for local data-privacy laws and blocking statutes and the need for interpreters. Attorneys should understand before conducting interviews abroad any restrictions on recording interviews and leaving the country with notes taken during an interview. Interpreters should be used unless the interviewee is native-language proficient in the language of the interviewer to avoid any misunderstandings. Because it is likely that the interview will deal with complex and technical subject matter, even highly proficient speakers may struggle with some topics.
8.3 Upjohn protections
When a practitioner who represents a corporate client is interviewing an employee, it is important that the attorney ensures that the witness understand the limitations of an attorney’s representation and issues surrounding privilege. This is commonly referred to as an Upjohn2 warning, and entails informing the witness that the attorney represents the company, not the witness individually. In addition, the attorney should inform the employee witness that:
- counsel has been hired to gather information for the purposes of providing legal advice to their client – the corporation;
- their fact-gathering is protected by both attorney–client communications and work-product privilege;
- that privilege belongs not to the witness, but to the company, and it is the exclusive decision of the company whether to waive that privilege – which it can do at any time; and
- the witness must keep the interview and what is discussed during it private and confidential.
Following an Upjohn warning, attorneys should ensure that the witness understood the warning and extensively document that the Upjohn warning was given and understood.
A witness is likely to have questions after being given an Upjohn warning – the most common being ‘do I need my own attorney?’ Attorneys must take care to develop a strategy for responding to such questions. It is not proper for the attorney to provide legal advice to the witness, having just explicitly disclaimed an attorney–client relationship with that individual. If a witness persists in requesting legal advice, an attorney should confer with internal company counsel, who may then offer the employee names of potential attorneys with whom the witness can consult. Telling the witness that they need (or do not need) their own counsel could constitute legal advice, so attorneys should, wherever possible, refrain from doing so.
8.4 Protecting work-product and attorney–client privilege
In the United States, there are two main types of privilege that may protect work-product and communications during an internal investigation: attorney–client privilege and work-product privilege. The attorney–client privilege protects communications between an attorney and his or her client to encourage full and frank communication without fear that confidential information will be disclosed to others.3 Work-product privilege is broader than the attorney–client privilege, but it does not extend to every document generated or reviewed by the attorney.4 Work-product privilege applies to materials prepared in the anticipation of litigation, litigation in process, or the prospect of future litigation, and reflects litigation investigation or analysis.5
There are many best practices to protect communications and documents – including notes as discussed more fully below – under both privilege doctrines. First, to establish and document the attorney–client relationship and basis for work-product privilege, the corporation should state in writing that the attorney has been hired to conduct an internal investigation in anticipation of government or civil litigation. Corporations can even include this language in their company policy regarding internal investigations. Secondly, although internal investigations are largely a fact-finding mission, it is important to ensure that there is sufficient attorney oversight and involvement in the investigation, as the overall purpose of an investigation is to render legal advice based on its findings. Even though the privilege can extend to conversations with a non-attorney as long as that person acts as an agent of the attorney, it is always safer to consistently involve corporate and external counsel in these conversations. Counsel should routinely document that the investigation is made to render legal advice and that these communications are privileged and confidential. This can be accomplished by both marking documents as ‘Privileged and Confidential’ and giving witnesses an Upjohn warning, informing them of their relationship to counsel and that all communications are confidential.
Practitioners conducting investigations outside the United States must be aware of different standards for privilege and adjust accordingly. What may be privileged in the United States may be discoverable in other jurisdictions. For example, in the United Kingdom the attorney–client privilege is limited only to discussions of legal advice between an attorney and his or her client – the ‘client’ may not include lower-level company employees who do not have the authority to seek and receive legal advice on behalf of the company.6 In addition, in the United Kingdom legal advice privilege does not extend protection to communications with third parties, even where those third parties, such as accountants, were engaged to assist or enable an attorney to provide legal advice to the client.7
8.5 Note-taking and privilege
To ensure that witnesses are comfortable and candid, informal note-taking should be considered. For example, some attorneys find that typing notes on a laptop during an interview is distracting or intimidating to the witness, so lawyers should be ready to handwrite their notes if this would lead to a better interview outcome. While this may increase witness comfort, it decreases efficiency, as such notes are going to have to be typed at a later date. For one or two interviews, this is reasonable, but when interviewing a dozen or more individuals, typing up handwritten notes will be a burdensome task.
Special attention should be paid to how notes are taken for the purpose of discoverability under the work-product privilege doctrine. Under the doctrine, protection attaches to the ‘thoughts and impressions’ of attorney work-product and these thoughts and mental impressions have often been afforded the strongest protections under the principles of evidence and civil procedure.8 The decision to take notes as opposed to typing a verbatim transcript carries important implications under these doctrines of which interviewers should be aware before making a decision on their preferred method during an interview. Protecting privilege requires a complicated analysis and varies significantly based on the jurisdiction in which the investigation will occur.
For example, if privilege protection regarding the notes of an interview was challenged, it is less likely – in most jurisdictions – that a court would characterise a verbatim transcript as containing the ‘thoughts and impressions’ of the attorney. Such a ruling would increase the likelihood of its discoverability.9 Note-taking including summaries and thoughts, on the other hand, is more likely to contain the thoughts and mental impressions that the attorney has throughout the interview, eliciting work-product protection and making this approach both more helpful to the attorney when reviewing the topics discussed in the interview in addition to reducing the likelihood of discoverability. One approach is to take notes on the same, or slightly modified, document used to create the outline. This approach makes it easier for the note-taker to follow the topics in the interview and notify the interviewer of any missed topics, and increases the likelihood that the note-taker will record thoughts and impressions rather than verbatim conversations.
On the other hand, verbatim transcripts are not necessarily without privilege protection and can certainly be helpful if the investigator knows for certain that they will need to recall exactly what has been said during an interview. Depending on the type of interview being conducted or the type of business taking place at the firm under investigation, certain interviews may be extremely fact-intensive and require greater precision during the note-taking process. For example, if the investigation hinges on the steps and processes employed throughout a complex financial transaction, it may be beneficial to have a full transcript to review the steps and processes in the future. The need for the protection of privilege versus the need for exactness must be weighed.
Immediately following an interview, and before the commencement of the next interview on the schedule, the interviewer and note-taker should confer about the interview, allowing the note-taker – who is usually the more inexperienced party – to jot down any other notes that may be of use at a later date. Once the interviews have concluded for the day, the note-taker should re-review his or her notes, making appropriate edits to allow for the cleaning up of the work-product at a later date. Finally, when all interviews are complete, the note-taker should prepare a clear and concise document that memorialises the contents of the interview and distils all relevant information for easy recall and access.
There is no correct answer for every investigation, and it is up to the interviewer to use his or her best informed judgement when deciding how to take notes through the interview. In most situations, the specific nature of the investigation and the sensitivity of the information will provide sufficient guidance.
8.6 Interactions with witnesses
One of the first challenges that can take place prior to an interview is the consideration of providing counsel for the witness. Often, companies will provide counsel for the witness so that the witness has an advocate and to avoid creating the false impression that the company’s counsel is also charged with representing the witness. If both the company under investigation and the specific employee being interviewed are potentially facing criminal charges, it is generally recommended that the employee retain separate counsel in case the interests of the company and individual diverge. Furthermore, the employer and the employee could consent to enter into a joint defence agreement that will facilitate sharing information, based on their common interests in the investigation and defence.
When considering interactions with witnesses, the interviewer should determine whether there is a company policy on co-operation with investigations. Firms may have policies that require co-operation during internal investigation and knowledge of these policies prior to the interview potentially could serve as a helpful starting point. Certain witnesses may be unaware that these policies even exist – which the interviewing attorney may want to bring to their attention should the need arise.
With respect to conducting the interview itself, it is important to tailor the approach according to the particular witness. If a witness is friendly, and not suspected of wrongdoing, it is important to start by being approachable and personable with the witness to avoid any intimidation and potentially evasive or unhelpful answers. The interviewing attorney should begin the interview in a ‘light’ and non-demanding fashion to put the witness at ease. If the witness does not feel under pressure from direct and pointed questions, then he or she will be much more likely to share information that pertains to the investigation. If, however, an attorney knows that a witness is likely to be adverse or hostile, a different approach may be necessary. Witnesses may be hostile when they have committed a wrongful act – where information from an investigation or previous interviews suggests a witness is culpable. When confronting a witness with documents that show guilt or wrongdoing, conducting a cross-examination with leading questions may be more helpful. Regardless of the witness’s posture, the interviewer should also allow for questions from the witness. The goal of the interview process is to allow the witness to ‘tell their story’ while allowing the interviewer to maintain the role of counsellor and listener. Receiving and responding to the witness’s questions thoughtfully and respectfully will quickly establish trust and confidence, as opposed to coldness and hostility.
In addition to allowing the witness to ‘tell their story’, one of the other major objectives of an interview is to ask the witness about other individuals who may have knowledge on the subject of the investigation. When a witness is describing a certain set of events, it is not uncommon for him or her to discuss conversations held with others as these events took place. The interviewer should make sure to follow up on the other individuals that the witness brings up, both in the interview itself and after deciding who else should be contacted as a new witness.
Because each witness will react differently to certain questions, and there is no set formula for conducting an interview, the interviewers should strive to make the interview as open and conversational as possible while ensuring that the information being shared is both relevant and helpful to the investigation as a whole.
8.7 Document review and selection
In the ideal case, a white-collar practitioner will only conduct an interview of a company witness after a comprehensive document review has been conducted. Of course, some interviews are purely fact-finding and take place in emergent situations, making pre-interview document review unlikely. However, often, the review process should be under way, or ideally, completed before interviews take place.
The key dates and types of documents (e.g., emails, phone logs, text messages and financial documents) must be determined. These parameters will be set based on the type of information sought and the interviewees to be selected.
8.8 Remote interviews: costs and covid-security
Covid-19 has impacted many types of legal work, including investigations and witness interviews. Remote interviews have become the norm – and are likely to remain so for the foreseeable future. Even US government agencies are conducting interviews remotely. Not being in the same room as the interviewee creates challenges for attorneys, relating to, among other things, logistics, the evaluation of credibility and security.
Even before pandemic-related lockdowns began in early 2020, many clients preferred that attorneys performed interviews via videoconference to reduce costs. Attorneys that have performed remote interviews are well aware of the limitations imposed by not being present with the interviewee. For example, if it is necessary to show a witness documents and exhibits during the interview, the logistics can be difficult. To address these logistical hurdles, several platforms have been developed that allow for remote depositions and interviews. For example, many companies have developed platforms that aim to provide a seamless interface for remote depositions – allowing for document sharing and a host of features, such as private chat between members of an interview team to alleviate some of the issues faced when everyone is not in the same room. These platforms, although designed for deposition, are also a good option for witness interviews in internal investigations.
Regardless of the technology used, however, videoconference interviewing may still lead to a less effective interview – especially in the immediate future where attorneys are still used to travelling and performing interviews in the same room with the interviewee. Conducting an interview in person allows the interviewer to view and interpret attitude and body language in real-time. In-person interviewing also allows the interviewer to develop a rapport with the interviewee that is usually not possible over video link. It is also likely that a witness will have a harder time being untruthful, evasive or hostile in person than through a video screen. And it is much more difficult to assess an interviewee’s credibility from miles away, no matter how good the high-definition screens are. The more important the interview, the more likely an in-person interview may need to be conducted where possible. A proactive review of internal control processes is a better candidate for a telephone or video meeting than an internal investigation designed to ferret out wrongdoing.
The best cost-control and social-distancing measure, though, is still effective and meticulous planning. By focusing only on relevant interview topics, some interviews can be shortened or even forgone.
8.9 Reporting the results of interviews
Often the format and type of report for an interview will be determined by the client in advance of any interviews. In large investigations, shorter decks or slides may be more helpful to allow the client to digest large amounts of data from various jurisdictions. These decks should include all pertinent information obtained from interviews as well as data on the number, location and type of interviews. Whether a more summarised slide deck with bullet points, or a more in-depth memo is prepared, the attorney should highlight significant findings and recommendations for next steps and further action.
Especially when preparing less detailed investigation reports, an attorney should schedule time with the client to go through the report and elaborate on key findings and recommendations. The attorney and client must be aligned on the next steps to ensure the best outcome from the investigation and interviews.
A well-done witness interview in a white-collar case can assist the client in determining case strategy, assessing damage, and uncovering or hopefully disproving wrongdoing. Careful scoping will ensure a focused and cost-efficient interview. Understanding at the outset what the goal of the interview is, as well as local laws and practices that might hinder attaining that goal, will avoid unnecessary hurdles and produce the result that is best for the case.
1 Anne M Tompkins and Jodi Avergun are partners and J Robert Duncan is an associate at Cadwalader, Wickersham & Taft LLP.
2 See Upjohn Co. v. U.S., 449 U.S. 383, 385 (1981) (stating the privilege protects communications between the client and the attorney, not the underlying facts).
3 Swidler Berlin v. United States, 524 U.S. 399, 403 (1998).
4 NXIVM Corporation v. O’Hara, 241 F.R.D. 109, 126-27 (N.D.N.Y. 2007).
5 Fed. R. Civ. P. 26(b)(3); Restatement of the Law, Third, Law Governing Lawyers § 136 –
Work Product Immunity.
6 The Director of the Serious Fraud Office v. Eurasian Natural Resources Corporation Limited (2017) EWHC 1017 (QB) at para. 70.
7 Litigation privilege, however, may apply to communications with third parties, subject to certain conditions being met.
8 See Hickman v. Taylor, 329 U.S. 495 (1947).
9 Courts across the United States are inconsistent on the protection of verbatim transcripts, even when prepared in anticipation of or during litigation. Therefore, the safest course of action when privilege protection is paramount is to prepare notes that reflect the ‘thoughts and impressions’ of the attorney taking them. Compare Nam v. U.S. Express, Inc., 2012 WL 12840094, at *3 (E.D. Tenn. 15 May 2012) (holding that recordings of non-party witness interviews were not privileged because they were merely recitations of facts and did not contain mental impressions, conclusions, opinions or legal theories of a party’s attorney concerning the litigation), with Hatamian v. Advanced Micro Devices, Inc., Case No. 14-cv-00226-YGR (JSC), 2016 U.S. Dist. LEXIS 60551, at *4 (N.D. Cal. 6 May 2016) (preventing discovery of verbatim interview notes as factual work-product).