Reimagining Internal Investigations in Pandemic Times

Blake, Cassels & Graydon LLP
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The COVID-19 pandemic has forced rapid adaptations throughout all industries. Internal investigations are but another integral business mechanism that has been modified out of necessity. Below are key takeaways relating to changes that have arisen regarding internal investigations in this "new normal."

1. Remote Interviews as a COVID-Safe Alternative

In-person interviews are still preferred as they allow one to better assess credibility by witnessing reactions to tough questions first-hand without any “filters”, and to ensure that the room is secure and no one is listening or coaching the witness. That said, remote interviews may be preferable, including when witnesses would otherwise be required to wear masks, or when passing physical documents would be difficult due to pandemic considerations. Investigators, either external or in-house counsel, should be certain to confirm remote interview "housekeeping" which includes that the interview is not to be recorded and that there is no one else communicating with the witness, either in the room or through electronic messaging. In the post-pandemic world, remote investigations may be another tool in the investigations toolbox, facilitating investigations in certain contexts where in-person interviews would present challenges.

2. The Need for Increased Cybersecurity

The pandemic required most industries to begin working remotely very quickly. Increased security features were thus pushed to the side in favour of quickly establishing remote workstations, which resulted in a significant increase in reported data breaches during March and April 2020. When investigations are conducted remotely, sensitive documents are passed online, and interviews occur entirely through technological means, so heightened measures need to be in place to ensure there is no unauthorized access to that data. The chain of custody for documents and data also becomes more complex, since investigators often employ a third-party service provider as a custodian of sensitive data (for example, from imaging a laptop). As investigations become more dependent on technology, increased security measures are required to ensure the large volumes of investigation data are protected, and that the investigation is operating as securely as possible.

3. Privilege Concerns Amplified with Remote Investigations 

While the law of privilege does not change with virtual investigations, there are additional considerations. It can be easy to forget borders. The laws of privilege differ depending on the country where the investigation or interviews are taking place, so the investigating lawyer should consult a local lawyer to ensure that all laws relating to investigations abroad are being followed. Privilege should also be a focus of communication from the investigating lawyer to the client, as documents provided by email can easily be forwarded and once such documents are no longer being treated as confidential, the protection of privilege can be lost.

4. Regulators Shifting Focus

While private organizations have been forced to adjust to the changing circumstances of the pandemic, regulators have also had to adapt. Law enforcers and regulatory bodies have adapted to operating virtually, although there have been challenges. In addition, numerous tribunals have had to consider arguments about the fairness of virtual hearings, including whether witness testimony by videoconference is adequate, but have generally found virtual hearings to meet any due process requirements. Understanding the specific changes to investigation processes and enforcement priorities will help to optimize an organization's response to any enforcement agency they may encounter.

5. Adapting Dynamics within the Competition Realm

The Competition Bureau (Bureau) is one example of a law enforcement agency that has adapted to the investigation realities of the pandemic. The Bureau has established a task force to provide informal guidance on pandemic-related competitor collaboration, stating that it will generally refrain from scrutinizing such collaborations if they are limited in duration and scope, undertaken in good faith, and do not go beyond what is necessary to ensure the supply of products and services "that are critical to Canadians." The Bureau’s civil and criminal investigations have continued, albeit altered and slowed somewhat where search warrants and witness interviews are utilized. The limitations on these investigatory tools could result in the Bureau pursuing investigations on a civil track more quickly, or given the Bureau’s finite resources, in the decision not to pursue an investigation at all.
 
You can learn more about the changes to investigations during the pandemic and the firsthand experiences of investigators by viewing our webcast: Reimagining Internal Investigations in Pandemic Times.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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