Page 37 - American College of Trial Lawyers Federal Criminal Procedure Committee 2020 Update: Recommended Practices for Companies and Their Counsel in Conducting Internal Investigations

the appearance of obtaining objective responses. If additional counsel is present, their role should be
decided in advance, and they generally should appear in an observatory role only.

Investigatory Counsel should advise employees at the outset of the interview whether the
company has made a decision to waive the attorney-client privilege and work-product protections, or
is likely to do so, and to disclose contents of the interview to governmental agencies such as the SEC
or DOJ that is conducting its own investigation.

Absent special circumstances such as valid concerns of possible witness tampering,
obstruction of justice, other evidence of attempts to disrupt the integrity of the internal investigation
or the unavailability of hard-copy or electronic documents, Investigatory Counsel should make
available to witnesses or their counsel the general topics and specific documents that will be
covered in the interview, and allow current and former employees to obtain copies of their relevant
documentary files, including emails they authored or otherwise received, calendars, and other
documents.

Absent special circumstances such as valid concerns of possible witness tampering,
obstruction of justice, or other evidence of attempts to disrupt the integrity of the internal
investigation, Investigatory Counsel generally should not interview witnesses before they have had a
reasonable opportunity to review relevant documents.

Investigatory Counsel should resist pressure by prosecutors or regulators to have
Investigatory Counsel conduct their interviews before company witnesses have had a chance to
refresh their recollection with documents such as their own emails. Similarly, Investigatory Counsel
should resist government attempts to interview witnesses before Investigatory Counsel has done so.

Investigatory Counsel cannot advise an employee whether she should seek the advice of
individual counsel. Under these circumstances, Investigatory Counsel should remind the witness that
the Investigatory Counsel does not represent the witness and that if she wishes to speak to counsel,
the Investigatory Counsel will adjourn the interview for a short time to allow such consultation, and,
if previously authorized by the Independent Committee, to provide recommendations of counsel.

Investigatory Counsel should make an informed decision on how to memorialize the
substance of each witness interview (e.g., formal memoranda of interview, informal interview notes,
etc.) as close in time to the interview as possible and in a manner consistent with the attorney work-
product doctrine and the ultimate purpose of the investigation.

Investigatory Counsel and the Independent Committee should consider whether a joint-
defense or common-interest agreement between the company and individuals is appropriate,
especially when the company is seeking cooperation credit from government prosecutors or
regulators.

If a joint defense agreement is appropriate between the company and individuals or among
individuals, then consideration should be given to memorializing the agreement in writing even
though, as a practical matter, many JDAs are oral. A written JDA should set forth the parameters
for what is privileged and protected and include a provision that the existence of the agreement is

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