Page 36 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

possibility that the company will be responsible for advancing fees and expenses for the employee’s
representation, and the requirement that employees must cooperate with the investigation.

The Independent Committee should explicitly communicate what constitutes “cooperation” of
an employee during an internal investigation, and whether an employee’s refusal to timely cooperate
in this regard may result in dismissal, which is often the case. In most circumstances, the cooperation
of employees should include the following: (1) subject to state or foreign privacy laws, production
upon request of all material related to company business whether kept in the employee’s office, home,
or personal computer; (2) strict compliance with all document hold and retention notices; and (3)
submission to interviews by Investigatory Counsel.

At the outset of an investigation, the Independent Committee should consider the scope
of indemnity and advancement to directors, officers and employees, or others affiliated with the
company, in adherence to its bylaws, other corporate governance policies, or new policies designed
for the scope of the internal investigation. Legal and practical considerations on indemnity/
advancement also include historical practice, seniority, employment contracts and insurance coverage.
The Independent Committee should also consider, at the outset of an internal investigation, expanding
the scope of indemnity to include employees otherwise not covered by standard indemnification
policies, and independent contractors or acting officers of companies or their subsidiaries who
perform important executive functions, but are not literally within the company’s standard indemnity
policies.

Disinterested in-house counsel (or an equivalent executive if there is no in-house counsel
available) should monitor compliance with litigation holds, using reasonable efforts to continually
monitor the client’s retention and production of relevant hard-copy and electronic documents.

The relevant universe of hard-copy and electronic documents must be identified and collected
as early as possible in the investigative process.

Investigatory Counsel and retained forensic professionals, as needed, should conduct
document review and analysis of electronic and hard-copy documents.

Assuming time permits, after review and analysis of documents, Investigatory Counsel should
identify the relevant witnesses and conduct the interviews.

At the outset of the interview, Investigatory Counsel should advise each witness as follows:
(1) Investigatory Counsel represents the Independent Committee; (2) Investigatory Counsel is not
the employee’s lawyer and does not represent the employee’s interests; (3) statements made to the
Investigatory Counsel must be truthful; (4) the interview is protected by the attorney-client privilege,
but the privilege belongs to the company; and (5) the Independent Committee can unilaterally choose
to waive its privilege and disclose all or part of what the employee has told Investigatory Counsel
during the interview to external auditors, the government, regulators, or others.

The Independent Committee and Investigatory Counsel should give careful consideration
to whether inside counsel or outside counsel other than Investigatory Counsel should attend witness
interviews, with an eye to maximizing the possibility of obtaining objective responses and to ensuring

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