Developed by our Corporate Crime, Compliance and Investigations group, Focus on Investigations covers some of the key issues that investigators should take care to consider when undertaking internal investigations. In Parts 1 to 7 of the series, we examined when to conduct an investigation, policies and plans, maintaining privilege, collecting records, witness interviews and successfully concluding an investigation, among other issues.
In Part 8, we provide a quick reference checklist, which highlights the key investigation steps and considerations we have looked at over the course of the series.
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Investigation step |
Specific considerations |
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|---|---|---|
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INITIATE THE MANDATE |
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| 1. |
Engagement Letter |
The Engagement Letter provides the foundation for the relationship and sets out the expectations. |
| 2. |
Jurisdictional considerations |
Consider in what jurisdictions legal advice and representation may be required. You may refer to Part 7 of our Focus on Investigations for more information about multi-jurisdictional investigations. |
| 3. |
Privilege considerations |
Protection of privilege will be an important consideration. Privilege has a jurisdictional dimension. For example, China does not recognize privilege and Canada has multiple types of privilege that may attach to a record. You may refer to Part 3 of our Focus on Investigations for more insights on privilege in investigation. You may also refer to DLA's Global Insights document on privilege here. |
| 4. |
Internal escalation matters |
Consider who should be responsible for the investigation, depending upon the nature of the allegations. |
| 5. |
Identify the investigation team |
Identify the investigation team, externally and internally within the client. |
| 6. |
Prepare an initial investigation p |
Consider the key issues and identify next steps. Revise and re-assess at regular intervals to address new developments or findings. You may refer to Part 2 of our Focus on Investigations for more on Investigations Policies and Plans. |
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PRELIMINARY REVIEW |
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| 7. |
Conduct a preliminary review of the allegations |
Conduct a review of any key documents that are applicable to the allegations. |
| 8. |
Consider the potential iof the allegations |
Identify potential issues, including breaches of law, material commercial agreements, and policies / procedures of the client. |
| 9. |
Consider the availability of insurance |
Most insurance policies require early reporting. |
| 10. |
Consider pre-judgment remedies |
In cases of fraud against an organization, consideration should be given to pre-judgment remedies such as civil search warrants, asset freezing orders, or third party disclosure orders. You may refer to DLA's Global Litigation Guide for guidance on interim relief proceedings and prejudgment attachments and freezing orders here. |
| 11. |
Ongoing employment and pof employees |
Consider how to address the ongoing employment and participation of any of the client's employees. You may refer to DLA's Global Employment resources here. |
| 12. |
Voluntary disclosure to relevant authorities |
Evaluate benefits and timing of voluntary disclosure to relevant authorities. |
| 13. |
Consider the potential impact of the allegations if proven |
Considerations include search warrants, operational impact, personnel issues, legal and regulatory matters, material commercial agreements, dawn raids, government relations, public relations, and communication strategy. |
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DOCUMENT COLLECTION AND REVIEW Part 4 of Focus on Investigations |
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| 14. |
Litigation hold notices |
Consider the appropriateness of a litigation hold notice. |
| 15. |
Collect relevant records |
Collect relevant records including documents, emails, chat, etc. Consideration should be given to a proper forensic collection of the data to avoid changes to the metadata and to ensure the integrity and accuracy of the records. |
| 16. |
Use technology to analyze the data |
Use technology to analyze the data to detect key documents and issues (such as DLA Piper's Aiscension). |
| 17. |
Forensic analysis |
Complete forensic analysis through external expert. |
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INTERVIEWS Part 5 of Focus on Investigations |
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| 18. |
Request further interview with the reporter / whistleblower |
Any additional information/documentation from the reporter will likely be very valuable. Further, engagement and communication is important. |
| 19. |
Conduct interviews |
Develop a witness list and interview the client's personnel and third parties involved in the matter. |
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REPORTING TO CLIENT Part 6 of Focus on Investigations |
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| 20. |
Consider manner and type of reporting |
Consideration should be given to the manner and type of reporting during and at the conclusion of the investigation. |
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SELF-REPORTING CONSIDERATIONS |
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| 21. |
Potentially seek a remediation agreement with the Crown |
If the investigation determines that certain economic offences have occurred, including bribery, fraud, forgery, money laundering, and certain offences under the Corruption of Foreign Public Officials Act (Canada) (CFPOA), then it may be possible for the company to seek a remediation agreement with the Crown to avoid prosecution. |
| 22. |
Consider how many jurisdictions are involved |
If multiple jurisdictions are involved, evaluate the risk of collaboration between law enforcement agencies, regulators or quasi-regulators (i.e.. the World Bank or the IMF). |
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.