Investigation policies and plans
Focus in investigations: Part 2Having a clear plan in place is an essential element for success in an investigation. In this second part of our Canadian series “Focus on Investigations”, we will discuss key aspects of an effective investigation policy and plan.
Planning to succeed
As discussed in Part 1 of Focus on Investigations, the need for an investigation often arises when a business is faced with an urgent crisis or other triggering event. During the crisis, time is of the essence and businesses must take quick steps to respond and react.
Absent an investigation policy, business leaders will need to make hasty decisions without essential guidance, such as: who should handle the internal investigation; what initial steps should be taken; what issues should be considered; and more. The chaotic nature of a crisis makes it difficult to carefully assess each of these factors, particularly at the early stage, and an investigation policy can help guide some early decision making and map an investigation plan forward.
An investigation policy should direct preparation of an investigation plan, and specify the items that should be part of that plan. Businesses that prepare a detailed investigation plan are in a better position to address, scrutinize, and overcome a crisis. No two situations are the same, and an investigation plan will customize the response to the unique circumstances facing the organization, in a way that is not possible for a general investigation policy.
Preparing an effective investigation plan
There is no “one size fits all” investigation plan. Each organization has a unique business model and operates within a specific set of circumstances, and every set of circumstances that warrants an investigation will be different. An effective investigation plan will take these potential dynamic factors into consideration in order to best effect the required steps. Key considerations when developing an investigation plan include:
Defining the nature and scope of responsibility for the investigation
Creating the right team to conduct an internal investigation can be challenging. An effective investigation plan will consider who should comprise the investigation team, including the appropriate involvement of legal team members. Roles should be considered respecting in-house counsel, senior management, human resources and IT professionals. Some boards have a committee of independent directors or an audit committee that may be better suited to supervise an ongoing investigation.
The investigation plan should also include who is excluded from the investigation, and who information should not be shared with. Those persons that are witnesses or potentially implicated in the alleged conduct should be excluded from the investigation team, and precautions should be specified in the investigation plan to ensure that they do not become aware of investigation records.
When forming an investigation team, businesses should exercise caution to avoid inadvertently waiving legal privilege. Not all communications are protected by privilege. Information shared with third parties or those outside the investigative team may lose privilege status, and not all materials may be protected by privilege. Every member of an investigation team should be aware of the potential pitfalls when it comes to protecting privilege, and this should be considered in preparing the investigation plan. We will discuss privilege in detail in Part 3 of our Focus on Investigations.
Delineating the scope of the investigation
Another important consideration is establishing the scope of an internal investigation. As a first step, an investigation plan should clearly identify the nature and purpose of the investigation, including, in some cases, what it is not being investigated (and why). Absent clear objectives, an investigation plan and the investigation that follows it lacks boundaries and defined measures of progress, leading to the potential for wasted resources. The scope should also consider legal outcomes and what material may be privileged.
Any investigation plan should address and anticipate investigation steps, such as witness interviews, document preservation, collection and review, and communication, among other things. We will discuss witness interviews and document review in upcoming articles in our Focus on Investigations.
Investigations are often dynamic. The scope of the investigation should remain flexible to accommodate unforeseen changes. Additional information may require an expansion or narrowing of the scope.
Detailing jurisdictional boundaries
An investigation plan should also consider the possibility of the application of laws from another jurisdiction. This is particularly important on the issue of privilege, as not all jurisdictions have the concept of privilege as part of the applicable legal principles and policies, and privilege does not apply in the same way across various jurisdictions. Businesses that provide cross-border services may be subject to the laws of a foreign country, which may not include privilege over investigative work product. If there is a risk that foreign laws may apply, it is important for a business to address these considerations and risks in an investigation plan, including when it may be necessary to contact external counsel to assist with navigating the laws of the foreign jurisdiction.
The applicable laws of a jurisdiction may differ significantly and require a reshaping of the investigation framework. For instance, data privacy regulations and privilege operate differently even in common-law jurisdictions. We will discuss some of these important issues in cross-border investigations later in our Focus on Investigations.
Reporting
The investigation plan should keep in mind the type, manner, and recipient of reporting arising from the conclusion of the investigation. It may be that there need to be multiple reports, of different types, to different recipients. From verbal reports or presentations to comprehensive written reports, the investigation plan should consider how reporting will be completed. We will discuss reporting and remediation later in our Focus on Investigations.
Determining timing for periodic reviews
An investigation plan should be reviewed and updated periodically to ensure that the investigation plan is comprehensive and responsive to any new issues or challenges that arise in the course of the investigation. Taking the time on a regular basis for the investigation team to review the plan is essential to the success of the investigation and ensuring that no important issues are missed.
