A threshold issue in any internal investigation is the selection of an investigator. A number of considerations will guide a company’s decision.
Internal or External Investigator
There are several factors to consider in selecting an investigator, and practical considerations frequently indicate that the investigation be conducted by an internal investigator. However, employers often opt to engage external investigators for a variety of reasons, including high stakes or highly sensitive matters, investigations of a high-level officer, or investigations of an employee in the internal investigator’s chain of command.
If an external investigator is selected, the company should provide the investigator access to material company policies. It may be appropriate to identify an independent company representative to assist the investigator in gaining access to personnel files and other documents and information needed to conduct the investigation. In some cases, a special committee composed of subject matter experts from relevant areas of the company may be desirable to assist in the investigation.
Ability to Testify
Another consideration is whether the investigator will be available to the company to testify in disciplinary proceedings, arbitrations, and litigation. The company should discuss this issue with the investigator at the onset to confirm that the investigator has the requisite experience, capability, and willingness to testify in such proceedings.
Special Considerations for Attorney-Investigators
Other considerations apply when the investigator is an attorney. For example, if an attorney conducts the investigation, the company should consider that in future proceedings, the investigator may be a witness. Additionally, in certain circumstances, the factual investigation and findings of an outside attorney may be subject to disclosure in future proceedings, even if the company takes the initial position that the investigator’s work is subject to the attorney-client communication privilege or the attorney work-product doctrine.
Ultimately, several factors affect a company’s decision in selecting an investigator. The decision should be given significant weight, as it can impact the effectiveness of the investigation as a whole.