Let the Games Begin: Conducting Witness Interviews (Part III of IV)
Investigators can be nerds. Some enjoy reading documents; others enjoy conducting witness interviews. Both are challenging tasks. Each requires a separate set of skills. Some investigators are able to master a document review and build a story of what occurred in their head. Others use witness interviews to develop the same picture.
To be candid, how to conduct employee interviews is one of my favorites subjects (and tasks). I have written and spoken on the issue in a variety of contexts. It is a skill that can only be developed through experience – the only question is how much experience is needed to gain a mastery of the area.
I have a long list of dos and donts for witness interview and I don not intend to repeat them here. This article provides more technical guidance on witness interviews.
The selection of witnesses and order in which to interview is often obvious. Junior employees precede senior employees. Difficulties arise when trying to locate former employees and interviewing them.
Before interviewing a witness, it is important to prepare – to know as much about a witness as possible: career, family, education and background all can be factored in as part of an interview strategy. In addition, reviewing each document relating to the individual is important.
Some employees who may have a conflict because of their involvement in the incident or events may require separate counsel and those arrangements should be made as quickly as possible. This issue will usually turn on whether the individual is a witness or a “subject,” meaning that his or her conduct is being investigated.
As new counsel join the investigation to represent individual employees, it is important to establish a common/joint defense arrangement. To avoid any possible inquiry into these types of issues, these arrangements are usually reached verbally and never committed to writing.
At the beginning of each interview, every investigator is taught (and repeats often to others), “Don’t forget to give the Upjohn Warnings.” No one ever spends any time to learn exactly what the Upjohn Warnings are and why they are given.
An employee must be advised that: (1) the attorney conducting the interview does not represent the employee but represents the company; (2) the investigator’s purpose in conducting the interview; (3) outside counsel is conducting a confidential investigation; (4) the interview is being conducted to gather relevant information; (5) the information discussed is privileged and the company holds the privilege and whether to waive it; (6) the information might be disclosed at a later point including federal or state government investigators.
The Upjohn Warnings have to be memorialized either in the interview memo or in a separate written document provided to the employee. Some investigators hand out written warnings to the employee.
The failure to give proper Upjohn Warnings can have a serious impact on the company’s ability to use any interview statements when provided to the government to establish a company’s cooperation. If the government cannot use the statement, the company will not gain any credit from the government for such a statement.
The issue gets even more complicated and risky if the investigator actually represents the witness in a closely related matter (e.g. shareholder derivative suit against the witness). In this situation, the investigator could face serious consequences for failing to deal with an obvious conflict of interest.