Witness Interviews In Internal Investigations: The US Perspective

• Published date: 13 January 2023
• Subject Matter: Corporate/Commercial Law, Litigation, Mediation & Arbitration, Corporate and Company Law, Disclosure & Electronic Discovery & Privilege, Trials & Appeals & Compensation
• Law Firm: Shearman & Sterling LLP
• Author: Mr John Nathanson, Katherine J. Stoller and Caitrin McKiernan

13.1 Introduction

The success of an internal investigation often hinges on the employee (or former employee) interview. While the interview itself may be long or short, it always requires careful consideration and preparation.

Internal investigations are conducted in many different circumstances and for many different reasons. An investigation may be focused on a single instance of alleged misconduct or on the root causes of a corporate failure where no particular individual is believed to be culpable. It may be purely internal, with or without a whistleblower allegation, or it may follow a criminal subpoena or regulatory agency request. Investigations are highly fact-specific, and most interview practices should be tailored accordingly. There are, however, key considerations that typically apply to all witness interviews. This chapter outlines certain best practices in preparing for and conducting witness interviews and memorialising findings.

13.2 Preparing for the interview

13.2.1 Timing

At the outset of an internal investigation, it is tempting to move immediately to interviews, as that may seem the shortest path to learning the key facts. While that sometimes makes sense, jumping into interviews without proper preparation can be counterproductive.

Generally speaking, it is advisable to conduct most interviews after a thorough review and analysis of the documentary evidence. This allows the practitioner to conduct interviews with a more thorough understanding of the facts and to question witnesses about key documents, leading to more developed findings. This can delay the investigation, but it can also obviate the need to conduct two or more rounds of interviews, reducing business disruption and investigation costs. In some instances, conducting interviews before the documentary evidence is available may be required if, for example, a key witness is leaving the organisation.

In certain circumstances, it may also make sense to conduct scoping interviews before document collection and review begins, or while that stage is ongoing. Scoping interviews may assist in tailoring the investigation and identifying key evidence or helpful background, such as relevant policies and practices, the organisation of a particular department or information relevant to data collection. Typically, and where possible, the witnesses interviewed in the investigation scoping phase should not be connected to the events under investigation. Examples include individuals involved in document retention or individuals in control functions who can provide perspective on company policies and practices.

The decision to conduct scoping interviews should be made strategically, balancing considerations such as the risk of tipping off individuals against the benefit of information that can scope the investigation effectively.

13.2.2 Sequencing

Sequencing of interviews is another important consideration. As a rule of thumb, key witnesses should be interviewed later in the investigation so the practitioner can use the information gained beforehand to question them and to reduce the likelihood of a second interview (which is not always possible). Supervisors and senior management should generally be interviewed towards the end of an investigation as well to develop an understanding of management's knowledge of, or participation in, the conduct at issue. It is critical that interviews of senior managers be conducted with the fullest understanding of the underlying facts. Of course, the sequence may need to be adjusted depending on witness availability.

A related question is whether to conduct certain interviews in parallel or in rapid succession to reduce the risk that witnesses tip each other off to the investigation's focus, certain lines of questioning or the existence of certain documentary evidence. Each witness's recollection should be as pristine as possible, not muddied by the recollections of others or the opportunity to reconstruct a narrative, whether intentionally or inadvertently. Should interviews proceed in parallel, practitioners should communicate during or immediately after the interviews so that information learned in one can, where appropriate, be immediately raised in another. Writing up a bulleted list of key takeaways immediately after an interview is often helpful; while full interview memoranda can take longer, bulleted lists are easily created and digested by colleagues and can be an invaluable way of quickly sharing key insights.

Where possible, interviews on the same topic should be conducted around the same time (unless the circumstances merit making an exception). Scheduling the interviews close together may allow the practitioner to more accurately weigh differing perspectives and answers. It also ensures that the investigation is timely completed. Where the investigation is in response to criminal or regulatory inquiries, or may require regulatory reporting, it is essential for the record to be developed and reported promptly. Moreover, a slow-moving investigation is stressful for interviewees and can be bad for the morale of the business unit involved.

13.2.3 Length of interview

Before scheduling it, the practitioner should give careful thought to the appropriate length of the interview. This will depend on several factors, including the interviewee's anticipated level of knowledge, the complexity of the issues and the amount of documentary evidence to be discussed. Senior managers are also frequently unwilling to sit for lengthy interviews. Generally, it is better to book a longer interview slot than the practitioner thinks is minimally necessary. This provides more time for completeness and follow-up and reduces the risk of requiring further interviews. That said, many interviews can be conducted appropriately in an hour, and they seldom require more than a few hours.

13.2.4 Notifying the interviewee

13.2.4.1 Advance notice and sending calendar invitations

In a typical internal investigation, the interviewee will receive advance notice of an interview.

While this notice may seem like a simple, clerical task, the approach - and who provides the notice - matters. It is frequently preferable for initial notice to be provided by internal counsel or an interviewee's supervisor, rather than external counsel unknown to the interviewee or senior management. A telephone call may be preferable to an email, with an email following to confirm the specifics.

The notifier should be prepared to respond to any queries and should typically explain that this is confidential, that the witness need not prepare and that more will be explained during the meeting. The sender should also be prepared to explain that the company expects the witness to co-operate. The sender should be prepared to share all correspondence received from the witness with the practitioner in advance of the interview.

If the request for an interview is communicated by email, the timing of the invitation...