People need a vision to inspire them. I know this sounds corny but I always used this motto as a motivational tool. If you can see the goal, then you can figure out a way (or ways) to achieve the goal. If you conduct a set of tasks that are not aligned with any vision, you can veer off target and waste a lot of time.
The most successful prosecutors and investigators are those who have a vision for an investigation and a case and then go out and follow a plan for that vision. Of course, the vision can change along the way as you learn more facts but if you train yourself to think in terms of the vision, then you will work more efficiently and achieve greater results.
When launching an internal investigation, the same principles apply. The investigators need a vision and have to develop a plan for how to achieve the vision. Please do not misinterpret my statement – I am not saying to predetermine the results but to develop a framework within which the facts can be determined and how the investigation will look and persuade other stakeholders.
As a first step in any plan, a senior executive, preferably the CEO, should draft a memorandum to the general counsel and/or outside counsel directing them to conduct a confidential investigation for the company. The intent of this memo is provide the broadest umbrella of attorney-client protection for counsel and all of those participants acting at their direction – e.g. forensic accountants, computer forensic specialists, and other professionals needed to assist. From this memorandum, all professionals must be retained through the derivative power of the initial authorization. If outside counsel is part of the direction, a responding memorandum should be prepared by outside counsel informing the CEO that the internal investigation has been initiated. The engagement letter for outside counsel should be prepared consistent with this strategy in mind, and should set out the procedures to be followed by outside counsel for access to information, reporting responsibilities and overall independence.
Second, employees who have been designated to assist in the internal investigation should receive instructions that outline the nature and purpose of the investigation, the importance of confidentiality, and document retention procedures for their notes or other work product.
Third, a formal investigative plan should be prepared. The plan should address specific categories of tasks – document retention and review; witness interviews; forensic examinations; and other support analyses. The document should be written with the audience in mind – both internal and external – as proof of the company’s intent to find out the truth and lets the chips fall where they may.
Fourth, the investigators should review the company’s Directors’ and Officers’ insurance policies to ensure that the company may be entitled to coverage of certain costs and liabilities.
Fifth, the investigators have to issue immediately a document hold memorandum. The breadth and scope of a document hold should be reasonable under the circumstances – there is need to hold documents for review in some remote area of the world with no apparent relevance to the matter being investigated. It is important that reasonable steps be taken but companies get tripped up on this issue in a series of legal worst-case scenarios.
While we live in the technological age, paper documents and electronic documents have to be preserved, especially ledgers, power point presentations and other printed documents that often fall through the cracks.
Once the universe of documents is identified, it is important to develop reliable and relevant search terms to identify as quickly as possible relevant documents. His process should be continued and updated as more information is learned.
Companies have to devote time and resources to managing their electronically stored information. It is an issue that can have devastating consequences if information is lost or accidentally destroyed. The focus will quickly become the destruction of the documents and not the substance of whatever was apparently lost.
Finally, and before launching into witness interviews, it is important to take precautions to protect confidentiality and attorney-client/work product privileges. A procedure for labeling documents and other work product has to be adopted and followed.