Conducting the investigation: Witness interviews
Focus on Investigations: Part 5Interviewing witnesses is an important step in almost all investigations. While the documents collected will set the stage, investigators ultimately need to hear from the individuals involved to assess what has happened and why. In Part 5 of Focus on Investigations, we set out some key considerations in conducting effective interviews.
Who to Interview
A key initial consideration for investigators is their interview list – who will they interview? The list will change through the course of the investigation, with names added and deleted as new information is discovered through the investigation process.
If the complainant is not the first interview, they will be near the top of the interview list. It is important to hear from the complainant about the particulars of their concerns and obtain a detailed description of the alleged misconduct. Not only does an early interview with the complainant help support the investigation process, it also comforts the complainant and provides assurance that their report is being handled seriously by the organization.
The individuals implicated in the misconduct will also feature prominently on the interview list. Usually, interviews with these individuals are conducted last, so that the investigator may put to that individual all the facts relevant to the alleged misconduct.
Any witnesses or persons involved in the alleged misconduct will need to be interviewed. As the interview progresses, more individuals are usually added to the witness list. An important question during interviews will be to ask witnesses to identify others that might have helpful information.
Investigators may consider conducting early “scoping” interviews to help identify key evidence or helpful background facts. Scoping interviews or “information seeking discussions” are typically conducted with individuals who can offer initial details and are available for follow-up after document review has occurred. These might include an accounting representative who can explain how expense approvals are processed in the organization, or an IT employee who can explain the way that documents are saved to the organization’s system.
When to conduct interviews
Timing of interviews is an important consideration. Should the investigator kick off the investigation with interviews or should those interviews be delayed until later in the investigation?
Ideally, investigators prefer to conduct interviews once document review and a thorough analysis of the documentary evidence have been completed. By conducting the investigation in this manner, investigators should have a greater understanding of facts and key documents, allowing for more thoughtful and comprehensive questions at the interviews.
However, investigators don’t often work under ideal circumstances. For example, if a key witness is leaving the organization, it may be necessary to conduct their interview quickly and prior to their departure. Alternatively, if an interview of a person outside the organization is required, more flexibility may be required to accommodate their schedule. As a further example, if a witness is likely to disclose the details of their interview to an individual implicated in the misconduct (such as in the case of close colleagues or other relationships), it may be important to coordinate their interviews to occur back to back or concurrently, to avoid sharing of information. A variety of circumstances may necessitate interviews in a less than ideal ordering, and investigators need to asses the best manner of proceeding in the circumstances.
Informing the witness
At the start of the interview, witnesses should receive some explanation as to the purpose of the interview. In particular, the investigator should explain why they are being interviewed. This might be very general for an information seeking discussion (i.e.: “we are investigating issues relating to expense reports”) or more particular for individuals involved in the misconduct (i.e.: “we are investigating your direct report’s expense reports for last year relating to travel”).
The witness should also understand the organization’s expectations as to confidentiality. The investigator should explain that the organization’s investigation process is to be strictly confidential, and the subject matter of the interview should not be discussed with others. Further, the witness should be assured that the investigators will keep the information provided confidential as part of the investigation process, and the witnesses can therefore freely share information with the investigators. In this regard, the organization should have a strong investigations policy within its governance documents, so that it can provide these assurances to witnesses. See Part 2 of Focus on Investigations for more information about investigations policies and plans.
We are often asked about providing an “Upjohn Warning” to Canadian witnesses. An “Upjohn Warning” (also known as a corporate Miranda warning) is a tool used by counsel in the United States to inform an employee that legal counsel conducting the investigation represents only the organization and not the employee individually. Among other things, the warning also informs the employee that while lawyer-client privilege protects the communications between counsel and the employee, the privilege is controlled only by the organization, and that the organization may choose to waive the privilege and disclose what the employee told counsel to any third party. For more information relating to privilege in investigations, please refer to Part 3 of our Focus on Investigations.
Canada does not have the same formal legal requirements as the US relating to Upjohn Warnings. However, in some cases, it is good practice for Canadian counsel to provide a form of Upjohn Warning to certain witnesses. For example, where an interview is held for an individual implicated in serious misconduct, which might lead to regulatory or criminal prosecution, it would be important to set out a clear warning. However, for an information seeking discussion with a person not involved in the misconduct, the warning is unnecessary in Canada and risks having a chilling effect on the interview.
Providing counsel for the witness
There is no obligation to provide independent legal counsel (“ILA”) to employee witnesses during their interviews. There is no inherent right to counsel for an employee at such an interview. Further, employees do not have a right to refuse to answer questions unless their counsel is present. Employees must respond to reasonable employment-related requests, including the attendance and cooperation at interviews. The organization has no legal obligation to deal with an employee’s counsel, and the organization is entitled to deal with the employee directly.
However, it may be prudent for the organization to provide ILA in some specific circumstances. For example, where the organization has determined that the employee has likely committed an offence, it may be advisable to provide ILA for the employee during the interview. By not offering ILA, organizations risk that some statements made by the employee during their interview could be excluded from the subsequent prosecution of that employee. In contrast, by offering ILA, the organization can be assured that the employee has competent and cooperative legal counsel, which will help mitigate delay or other challenges in the interview process with that employee.
Inclusion of union or labour representatives
If a complaint or concern involves a member of a collective bargaining unit, the organization should review the collective agreement to determine if the individual is entitled to union representation during their interview. The terms of the collective agreement will provide details as to those entitled to representation, the nature of the union representation, and the point the process where an individual’s representation right is triggered.
Recording the interview
There are numerous mechanisms that can be used to record and document the contents of the interview. These include simple note taking, preparing formal summaries (which might be signed off on by the witness), or taking audio or video recordings of the interview.
While an audio or video recording certainly provides the best record of the interview, it also has some limitations. First, audio or video recording might create a chilling effect in the interview and cause the witness to be less forthcoming. Second, there may be an argument in subsequent litigation or proceedings that a recording is not privileged since it is no more than a recording of facts. In contrast, notes taken by legal counsel may be argued to be privileged, as they contain counsel’s impressions, assessments or comments.
Preparation of a formal interview summary for sign off by the witness after the interview is a common method to confirm the witness evidence. While this approach provides confirmation that the notes taken were accurate, it does bring additional challenges. First, it gives the witness an opportunity to retract or change their evidence after the fact and upon reflection. Second, the witness is given a written copy of their evidence, which might then inappropriately be disclosed to others in the organization or elsewhere.
Finally, preparation of notes ideally should involve a separate notetaker, so that the person conducting the interview does not also have to focus on preparing detailed notes. However, there is always the risk that the notes will not accurately or fully reflect the witness’ evidence.
Each approach to recording and documenting the witness interview has its challenges, and the investigator will need to individually assess the pros and cons of each approach for each interview.
