Anti-Corruption & Compliance Blog

In our last alert, we discussed three tips to ensure an effective internal investigation: (1) develop and follow internal policies; (2) identify the audience that will evaluate and make decisions at the outset of the investigation; and (3) identify and understand the law that applies to the investigation. Below are several additional best practices for conducting an internal investigation.

4. Ensure the Investigator is Independent

Identifying what group should conduct an investigation is critical to achieving a successful resolution.  The investigating party should be independent when evaluating the facts that develop during the investigation.  This means that the investigating party cannot be implicated in any way in the events that sparked the investigation. Further, the investigating party must be of a sufficient level (internally or externally) to ensure that the integrity of the investigation will not be compromised if members of management are involved.  Sometimes the need for independence will warrant hiring outside counsel to conduct the investigation.  Other times, members of the legal or human resources department may be sufficiently independent to conduct the internal investigation.  Evaluating this issue at the outset of the investigation will avoid the added cost of having to switch investigators in the middle of the investigation or, worse yet, compromising the integrity of the investigation all together.

5. Gather and Review All Relevant Evidence

Identifying all of the relevant evidence is imperative to an effective investigation.  This may include preserving, searching, and reviewing the emails of key personnel.  It will involve talking with the key witnesses that have knowledge of the facts of the investigation.  It may also involve gathering evidence from third parties, such as vendors or agents.  Ensuring that the scope of the search for evidence is broad enough to discover all of the relevant facts is key.  Starting with a broad group of documents and witnesses and refining that universe over the course of the investigation is often the best way to ensure that all relevant facts are identified.

6. Protect the Privilege

Throughout the investigation it is important to stay mindful of the attorney-client and work product privileges.  Depending on the size and scope of the investigation, third parties such as outside auditors, insurers or customers may ask for periodic status updates.  It is important to consult with the internal legal department or outside counsel in these circumstances to ensure that privileges associated with materials prepared by attorneys or communications with counsel are not waived.  It is also important to remind employees who may be aware of the investigation that the privileges involved belong to the company, not the employee, and information related to the investigation should not be shared with third parties.

7. Deliver the Findings and Conclude the Investigation

When the investigation has concluded, it is important to consider the best medium to report the findings. A written report is warranted in some cases.  In others, an oral report is appropriate.  In considering the best way to deliver the findings, consider the audience and issues of privilege.  Most importantly, the conclusion of the investigation itself should be documented.  A review of the company’s policies and procedures and an evaluation of best practices will ensure that the next internal investigation is even more efficient and effective.